{ "id": 680635, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS AUSTIN, Defendant-Appellant", "name_abbreviation": "People v. Austin", "decision_date": "1994-06-24", "docket_number": "No. 1\u201492\u20140609", "first_page": "976", "last_page": "981", "citations": [ { "type": "official", "cite": "264 Ill. App. 3d 976" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "538 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "568 N.E.2d 837", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236877 ], "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0204-01" ] }, { "cite": "565 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "141 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238549 ], "weight": 2, "pin_cites": [ { "page": "13" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0001-01" ] }, { "cite": "600 N.E.2d 407", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. 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App. 3d", "case_ids": [ 5639150 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0559-01" ] }, { "cite": "340 N.E.2d 186", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2962537 ], "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0521-01" ] }, { "cite": "460 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523312 ], "year": 1975, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0013-01" ] }, { "cite": "628 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "496" }, { "page": "496-97" }, { "page": "497" } ], "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 670", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2893103 ], "weight": 3, "pin_cites": [ { "page": "703" }, { "page": "703" }, { "page": "703-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0670-01" ] }, { "cite": "263 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 2, "pin_cites": [ { "page": "443" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] } ], "analysis": { "cardinality": 693, "char_count": 12392, "ocr_confidence": 0.819, "pagerank": { "raw": 8.47450201790458e-08, "percentile": 0.4855452962701686 }, "sha256": "e814a53ea663e223c89d74c5f015288605ed5572399c98cde13fa71d93458464", "simhash": "1:b8b7bd4e9c0595c2", "word_count": 2072 }, "last_updated": "2023-07-14T18:49:29.319239+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS AUSTIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nEllis Austin (defendant) appeals his attempted armed robbery conviction because the jury acquitted him of first degree murder in the same proceeding. Defendant also appeals his 13-year sentence rendered by the trial court.\nThe issues presented for review are (1) whether the jury\u2019s verdicts \u2014 finding defendant not guilty of the first degree murder charge and guilty of the attempted armed robbery charge \u2014 were legally inconsistent requiring application of the doctrine of collateral estoppel and (2) whether the State proved defendant guilty of attempted armed robbery beyond a reasonable doubt.\nWe affirm.\nBACKGROUND\nOn October 4, 1989, defendant and three accomplices, Farrell Hall (Hall), Terrance Steele (Steele), and Kevin Cathey (Cathey) participated in four armed robberies, the last of which resulted in the murder of Derrick Hall (victim).\nThe first robbery occurred after 7 p.m. in Bellwood, Illinois, as Lionel Gilmer (Gilmer) was walking home from work. Two men approached him. Gilmer later identified defendant as having been the perpetrator who wielded a gun. Defendant pointed the gun in Gilmer\u2019s face and ordered, \"Give up your shit.\u201d Gilmer surrendered his \"Task Force\u201d Starter jacket, a Walkman, a pager, and $200 in cash. Defendant and the other offender then fled down an alley, entered a station wagon, and drove away.\nThe second robbery occurred about an hour and a half later in Maywood, Illinois, as Steven White (White) was walking home. Again, two men approached him. White later identified defendant as having a gun. Defendant and his accomplice demanded White\u2019s Washington Redskins jacket and hat. When White tried to run, defendant fired the gun at him. White stopped. Defendant and the other perpetrator took his jacket and hat and ran away.\nThe third robbery followed shortly thereafter at the Henry Horner Homes, a housing project development. This time, Cathey and Hall got out of the station wagon and robbed two men of their Starter jackets at gunpoint. No one reported this robbery to the police.\nThe final robbery, which resulted in the victim\u2019s murder, occurred in the vicinity of Thomas and Western Streets in Chicago. Ricardo Vigo (Vigo), an eyewitness, testified that he and the victim had been waiting at a southbound bus stop on Thomas and Western when four people in a station wagon stopped nearby.\nFrom four feet away, Vigo testified that he saw one male black exit the car and approach the victim, who was wearing a blue Starter jacket. The offender told the victim to give him his Starter jacket. As the victim began to take off his jacket, the perpetrator shot him, ran back to the station wagon, and left. Vigo did not see defendant that night.\nGaspar Rios (Rios), who was standing from a different vantage point, testified that he was approximately three-quarters of a city block away when a dark-colored station wagon with \"safari woodgrain along the sides\u201d stopped. Four people were in the car.\nAt first, one male black person exited from the front passenger side of the vehicle. This individual went to the bus stop where the victim was situated. The victim was wearing a dark navy blue jacket that had orange stripes on its sleeves (Chicago Bears Starter jacket). The first person who exited the car approached the victim and tried to take his jacket. The victim started to run.\nAt that moment, a second person egressed from the vehicle from the rear side of the driver\u2019s side and ran towards the victim. The victim started to run into the middle of the street, at which time the second person who exited the station wagon shot him. The victim fell in the middle of the street. The two men then ran back to the station wagon, jumped in the car, and left. Rios further testified that he did not see defendant that night. However, as the car was speeding away, he identified Steele as the driver. The victim later died.\nAfter investigation, the police arrested and indicted defendant along with Cathey, Hall, and Steele. Defendant was charged with first degree murder and attempted armed robbery. Defendant pled not guilty and was tried separately.\nThe jury found defendant guilty of attempted armed robbery and acquitted him of first degree murder. The trial court sentenced him to 13 years\u2019 imprisonment at the Illinois Department of Corrections.\nWe affirm.\nOPINION\nI\nDefendant contends that the jury\u2019s verdicts were legally inconsistent, thus requiring application of the doctrine of collateral estoppel. We disagree.\nThe doctrine of collateral estoppel provides:\n\"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.\u201d (Emphasis added.) Ashe v. Swenson (1970), 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Q. 1189, 1194.\nTwo or more offenses may emanate from the same transaction, and the rule that a person cannot be put twice in jeopardy for the same offense has no application where two separate and distinct crimes are committed by the same act. (People v. Hairston (1970), 46 Ill. 2d 348, 358, 263 N.E.2d 840.) In the case sub judice, defendant\u2019s first degree murder and attempted armed robbery charges were two separate and distinct crimes which emanated from the same act.\nThe first degree murder statute (720 ILCS 5/9 \u2014 1 (West 1992)) provides:\n\"A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:\n(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or\n(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or\n(3) he is attempting or committing a forcible felony other than second degree murder.\u201d\nThe armed robbery statute (720 ILCS 5/18 \u2014 2 (West 1992)) provides:\n\"A person commits armed robbery when he or she violates Section 18 \u2014 1 while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.\u201d\nAnd:\n\"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.\u201d (Emphasis added.) 720 ILCS 5/8 \u2014 4 (West 1992).\nIn the case under judicial consideration, defendant asserts that the jury\u2019s verdicts were legally inconsistent because it acquitted him of first degree murder but found him guilty of attempted armed robbery.\nVerdicts will only be set aside if legally inconsistent. (People v. Wilson (1993), 257 Ill. App. 3d 670, 703, 628 N.E.2d 472, 496.) Verdicts are legally inconsistent where they necessarily involve the conclusion that the same essential elements of each offense are found both to exist and not to exist even though the offenses arise out of the same set of facts. Wilson, 257 Ill. App. 3d at 703, 628 N.E.2d at 496-97; People v. Hoffer (1984), 122 Ill. App. 3d 13, 20, 460 N.E.2d 824; People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186.\nMoreover, an acquittal of a murder charge does not preclude an armed robbery conviction. (People v. Rudolph (1977), 50 Ill. App. 3d 559, 565, 365 N.E.2d 930.) Nor would such a verdict be legally inconsistent. People v. Clemons (1989), 179 Ill. App. 3d 667, 673, 534 N.E.2d 676 (jury\u2019s verdict of not guilty of felony murder in the commission of armed robbery is not inconsistent with its finding of guilty for armed robbery); Rudolph, 50 Ill. App. 3d at 565.\nIn the case at bar, the jury\u2019s verdicts cannot be considered legally inconsistent because its resolution of one charge did not preclude an opposite resolution on the other charge. (See Wilson, 257 Ill. App. 3d at 703-04, 628 N.E.2d at 497.) Further, jurors may act with lenity. See People v. McClellan (1992), 232 Ill. App. 3d 990, 1009, 600 N.E.2d 407.\nFor first degree murder, a person who kills must either intend to kill, or do great bodily harm, or know that such acts create a strong probability of death or great bodily harm, or be attempting or committing a forcible felony other than second degree murder. For attempted armed robbery, a person must have a dangerous weapon and take a substantial step with the intent to take property from another by use of force or threat of force. Further, first degree murder is a completed act while attempted armed robbery describes an inchoate offense \u2014 the perpetrator has taken a substantial step in carrying out the offense but has not yet perfected it.\nAccording to the evidence from the record, and in consonance with existing Illinois law, we do not find the verdicts to be legally inconsistent because a comparison of the essential statutory elements of the three forms of murder and attempted armed robbery shows they are distinct.\nII\nDefendant next contends that the State did not prove him guilty of attempted armed robbery beyond a reasonable doubt. We disagree.\nOn review, a criminal conviction will not be set aside on the grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant\u2019s guilt. (People v. Tye (1990), 141 Ill. 2d 1, 13, 565 N.E.2d 931; And, determinations of the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence all lie within the jury\u2019s province. (People v. Steidl (1991), 142 Ill. 2d 204, 226, 568 N.E.2d 837.) Thus, the relevant inquiry in determining whether a prosecutor has proven a defendant guilty beyond a reasonable doubt is:\n\"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.\nSee also People v. Tye (1990), 141 Ill. 2d 1, 14, 565 N.E.2d 931; People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.\nAs the fact finder\u2019s role as weigher of the evidence is preserved, it is not the function of the reviewing courts to retry the defendant, and a \"criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant\u2019s guilt.\u201d People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.\nThe accountability statute, in pertinent part, provides:\n\"A person is legally accountable for the conduct of another when:\n* * *\n(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d 720ILCS 5/5 \u2014 2 (West 1992).\nHere, the State effectively proved that defendant aided and abetted in the planning of the armed robbery. While defendant did not attempt to rob the victim personally, in this case, defendant was nonetheless responsible for his accomplices\u2019 acts. By his own admission, defendant and his accomplices set out for a night of robbery of random victims. He personally robbed victims on at least two occasions earlier that same evening.\nIt is clear that in the fourth robbery of the evening, Hall was following the same pattern that he, along with Cathey, Steele, and defendant were following in the commission of the earlier robberies. It is also clear that they randomly selected their victims and took turns robbing them. Defendant aided in the commission of the crimes by planning the modus operandi which was used during the evening.\nFor the foregoing reasons, we affirm.\nJudgment affirmed.\nGORDON and McNULTY, JJ., concur.\nThe robbery statute provides that \"[a] person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.\u201d 720 ILCS 5/18 \u2014 1 (West 1992).", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Sternberg & Associates, of Chicago (Gary Sternberg, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Annette Collins, and Robert F. Hogan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS AUSTIN, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201492\u20140609\nOpinion filed June 24, 1994.\nSternberg & Associates, of Chicago (Gary Sternberg, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Annette Collins, and Robert F. Hogan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0976-01", "first_page_order": 994, "last_page_order": 999 }