{ "id": 910227, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN DUNCAN, Defendant-Appellant", "name_abbreviation": "People v. Duncan", "decision_date": "1998-06-16", "docket_number": "No. 1\u201496\u20143750", "first_page": "446", "last_page": "454", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 446" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "645 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365835 ], "year": 1995, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0500-01" ] }, { "cite": "669 N.E.2d 678", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 12", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182687 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "20-21" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0012-01" ] }, { "cite": "688 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 747", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847506 ], "year": 1997, "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0747-01" ] }, { "cite": "687 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847589 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0241-01" ] }, { "cite": "278 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156780 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "962" }, { "page": "962-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0960-01" ] }, { "cite": "469 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "103 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152474 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "330" }, { "page": "331-32" }, { "page": "333" }, { "page": "332-33" }, { "page": "331" }, { "page": "332" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0327-01" ] }, { "cite": "478 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0327-01" ] }, { "cite": "565 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238549 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "24" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0001-01" ] }, { "cite": "687 N.E.2d 48", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1997, "pin_cites": [ { "page": "49" }, { "page": "49" }, { "page": "51" }, { "page": "52, 53" }, { "page": "52" }, { "page": "52" }, { "page": "52-53" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "177 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317108 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "464" }, { "page": "464" }, { "page": "469" }, { "page": "469, 472" }, { "page": "469" }, { "page": "469" }, { "page": "469-72" }, { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0462-01" ] } ], "analysis": { "cardinality": 755, "char_count": 17156, "ocr_confidence": 0.771, "pagerank": { "raw": 7.594908417559972e-08, "percentile": 0.449903449969477 }, "sha256": "d4ef47528e3d10e6a46a41f903f1e4e0747754f25168523de13638836b100f31", "simhash": "1:baf13abc776eb506", "word_count": 2929 }, "last_updated": "2023-07-14T14:41:46.412422+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. ALLEN DUNCAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nDefendant Allen Duncan and codefendants Jermail Lake, Lemont Lake and Tineshea Lake were charged by indictment with two counts of first degree murder in the shooting death of Alvin Gilmore. After a bench trial, defendant was found guilty of first degree murder and sentenced to 21 years\u2019 imprisonment.\nOn appeal, defendant Allen Duncan contends that: (1) his conviction should be reversed because there was no written jury waiver and because the trial court failed to ensure that he understood the difference between a bench trial and a jury trial, failed to inform him that he had a constitutional right, to be tried by a jury of his peers and failed to ensure that the waiver of his right to a jury was knowing and voluntary; and (2) the State failed to prove him guilty of first degree murder under a theory of accountability.\nBACKGROUND\nEvents that began with a street encounter between two women and a slap ended on December 26, 1992, with a hail of bullets being fired at and into a building. As a result, Alvin Gilmore, who was inside the building, suffered a fatal gunshot wound to the head.\nOn December 26, 1992, Lashundia Davis, while on her way to a store by her home, ran into Tineshea Lake, who was with two other women, Rashawn Jackson and Kimberly Manning. Tineshea had previously dated Lashundia\u2019s boyfriend, Orlando Potts. Rashawn approached Lashundia, said something to her and slapped her across the face. At this point, Tineshea said \u201clet\u2019s get her.\u201d Lashundia then ran home and spoke to her sister and brother, who then accompanied her to Tineshea\u2019s home. At Tineshea\u2019s house, Lashundia offered to fight Tineshea but Tineshea refused and Lashundia went home. On her way home, Lashundia ran into her mother and her boyfriend, Orlando Potts. After they conversed, Orlando Potts went to Tineshea\u2019s house and broke windows in her house.\nBen Harden testified for the State pursuant to a plea agreement in which first degree murder charges against him were dropped and he received a sentence of 12 years\u2019 imprisonment for aggravated discharge of a firearm. According to Harden\u2019s testimony, he was in a car with Lemont Lake when Lemont stopped to make a phone call in response to a page he received on his pager. Harden testified that Lemont appeared to be angry when he got back in the car and told Harden that \u201c[tjhey was bogus.\u201d Lemont then drove to defendant\u2019s apartment on 55th and Union Streets. Once inside, Lemont told defendant to \u201cgive me that,\u201d at which point defendant retrieved a black] 9 millimeter gun along with a loaded clip and handed it to Lemont. Lemont put the loaded clip into the gun.\nLemont Lake, Ben Harden and defendant left defendant\u2019s apartment where, soon thereafter, they saw Jermail Lake and Shon Scott. Lemont told Jermail and Shon, \u201cThey was bogus for doing that.\u201d Defendant, Lemont Lake and Ben Harden then drove to the Lake house at 39th and Prairie, where they met Jermail Lake and Shon Scott, who had driven separately. Rashawn Jackson was sweeping up the glass from a window that Orlando Potts had broken. Harden further testified that Tineshea told Lemont that Orlando had broken the windows because she had called him \u201cout [sic] his name.\u201d Harden also testified that Tineshea told the group, which consisted of himself, defendant, Lemont Lake, Jermail Lake and Shon Scott, that they should go to Orlando\u2019s house and \u201ckick his ass,\u201d but that they should be careful because someone would be there. Lemont then pulled out the 9 millimeter gun and said, \u201cdon\u2019t worry about it.\u201d\nDefendant, Lemont Lake, Ben Harden, Shon Scott and Jermail Lake left the apartment and walked northbound on Prairie to Lashundia\u2019s house. Lashundia lived at 3932 S. Prairie, which is a low-rise housing unit. When they reached a tree about 30 feet away from Orlando\u2019s apartment, Lemont told the group to stop, pulled the gun out of his jacket and aimed it toward the apartment. As Lemont fired the gun he said, \u201cwatch me light this place up.\u201d He fired 16 shots at the apartment. On cross-examination, Harden testified that he could see people in Orlando\u2019s apartment before Lemont began shooting.\nDefendant, Ben Harden, and Lemont Lake ran to Lemont\u2019s car and defendant drove them to Lemont\u2019s house, where they drank and watched videos. Jermail Lake and Shon Scott arrived 5 to 10 minutes later. Jermail then made a phone call in which Ben heard him say, \u201cIs everybody straight? Is she O.K.?\u201d Approximately 15 minutes later, the police arrived and arrested everyone.\nAt trial, Lashundia Davis testified that, at about 6:30 p.m., shortly after Orlando had gone to Tineshea\u2019s home to break her windows, she was at home with her mother, siblings, Eric Watkins and her nieces and nephews, including Alvin Gilmore. Eric Watkins looked out the window and said something that caused Lashundia to look out the window. When Lashundia looked out the window she saw defendant, Rashawn Jackson, Kimberly Manning, Tineshea, Lemont Lake and Jermail Lake approaching her apartment from the courtyard directly across from her apartment. Lashundia claimed that the group was within 40 feet of her apartment at one time prior to shooting. Prior to the shooting, 14-year-old Alvin Gilmore was sitting at the kitchen table near a window. Testimony established that he died from a gunshot wound to his brain.\nAt the conclusion of simultaneous bench and jury trials, all of the defendants were found guilty of first degree murder. Defendant was sentenced to 21 years\u2019 imprisonment and now appeals.\nWe affirm.\nANALYSIS\nI\nDefendant first contends that he is entitled to a new trial because he did not waive his right to a jury trial in writing as is required by\nsection 115 \u2014 1 of the Code of Criminal Procedure of 1963.(725 ILCS 5/115 \u2014 1 (West 1992)), nor did he understandingly and knowingly waive his right to a jury trial in open court.\nSection 115 \u2014 1 of the Code states that \u201c[a]ll prosecutions *** shall be tried by the court and a jury unless the defendant waives a jury trial in writing.\u201d 725 ILCS 5/115 \u2014 1 (West 1992). However, in People v. Tooles, 177 Ill. 2d 462, 464, 687 N.E.2d 48, 49 (1997), the Illinois Supreme Court recently reiterated the well-settled rule that the failure to secure a written jury waiver does not require a new trial where it can be shown that the defendant\u2019s waiver was otherwise understandingly made. Tooles, 177 Ill. 2d at 464, 687 N.E.2d at 49; 725 ILCS 5/103 \u2014 6 (West 1992). Rather, the determination of whether a jury waiver was made understandingly turns on the facts and circumstances of each particular case. Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 51, citing People v. Tye, 141 Ill. 2d 1, 24, 565 N.E.2d 931 (1990).\nDefendant argues that Tooles requires that the trial court question the defendant in order to ensure that his jury waiver is understandingly made. In Tooles, the supreme court reviewed the trial records of three defendants, Tyreese Tooles, William Farmer and Demarco Gray, in order to ascertain whether each defendant had understandingly waived his right to a jury trial. In each trial, the respective trial courts spoke directly to the defendants. Defendants Tooles and Gray were asked whether they understood the difference between a bench and jury trial. Tooles, 177 Ill. 2d at 469, 472, 687 N.E.2d at 52, 53. Tooles was asked whether his desire to waive his right to a jury trial was the product of any promises or threats. Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 52. Furthermore, both Tooles and Farmer were told that their right to a jury trial was a constitutional right. Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 52. It was explained to defendants Farmer and Gray that waiving their right to a jury trial would result in a judge, without a jury, deciding the case. Tooles, 177 Ill. 2d at 469-72, 687 N.E.2d at 52-53. In light of these facts, the supreme court concluded that all the defendants had understandingly waived their right to a jury trial.\nIn the case sub judice, defendant argues that, under Tooles, a trial court is now required to follow the factors mentioned in Tooles, i.e., inform the defendant that his right to a jury trial is a constitutional right, explain the difference between a bench and jury trial and question whether the defendant\u2019s desire to waive his right to a jury trial is the product of any promises or threats in order to ensure that a defendant\u2019s jury waiver is understandingly made. We believe defendant misinterprets Tooles. In our view, Tooles does not require specific admonishments or advice to a defendant. To the contrary, citing People v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), the Tooles court specifically stated:\n\u201c[W]e review each defendant\u2019s trial record to determine whether he understandingly waived his right to a jury. In doing so we observe that, while the Circuit court must insure that a defendant\u2019s jury waiver is understandingly made, no set admonition or advice is required before an effective waiver of that right may be made. Smith, 106 Ill. 2d at 334. The determination whether a jury waiver was made understandingly instead turns on the facts and circumstances of each particular case. People v. Tye, 141 Ill. 2d 1, 24 (1990).\u201d (Emphasis added.) Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 51.\nPeople v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), in turn, cites People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195 (1984), for the proposition that no set admonition or advice is required before an effective jury waiver may be made. Smith, 106 Ill. 2d at 334.\nIn People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195, the record on appeal included only the record of the bench trial and did not include a record of the discussions between the court and defense counsel prior to trial. Frey, 103 Ill. 2d at 330. The appellate court ordered a new trial because it did not believe the record supported a finding that the defendant had implicitly or explicitly waived a jury trial. Frey, 103 Ill. 2d at 331-32. The Illinois Supreme Court disagreed and concluded that the defendant\u2019s jury waiver was valid because the defendant was present on occasions when the matter of a bench trial was discussed. Frey, 103 Ill. 2d at 333. The supreme court concluded that the orders that had been filed prior to trial that were included in the record indicated that a bench trial had been set and therefore reflected defense counsel\u2019s willingness to try the case before the court. Frey, 103 Ill. 2d at 332-33. The supreme court further noted that, on the day of trial, a colloquy took place between the court and defendant in which the only reference made to a bench trial was the trial court\u2019s comments on the matter. The trial court stated: \u201c[tjhese causes were set today for purposes of bench trial and the issues presented by all three counts pending against this defendant. Are the People ready for trial at this time?\u201d (Emphasis omitted.) Frey, 103 Ill. 2d at 331. The supreme court pointed out that, typically, an accused speaks and acts through his attorney and, therefore, effect is given to jury waivers made by defense counsel in defendant\u2019s presence where the defendant gives no indication of any objection to the court. Frey, 103 Ill. 2d at 332. In this way, the supreme court concluded, the accused will not be permitted \u201cto gamble on the outcome before the judge without a jury and then if dissatisfied make a belated demand for a jury.\u201d Frey, 103 Ill. 2d at 333.\nThus, Tooles holds that, in the absence of a written jury waiver or specific admonishment or advice by the trial court, a defendant has nevertheless knowingly, understandingly and voluntarily waived his constitutional right to a jury trial in open court when he permits his counsel in his presence and without his objection to waive his right to a jury trial on his behalf.\nIn the instant case, the following colloquy occurred:\n\u201cTHE COURT: Mr. Scott [defendant]. You understand that Mr. Levin is going to be representing Lamonte [sic] at a- jury trial, yourself at a bench trial. Is that what you wish to have?\nMR. SCOTT: Yes, sir.\nTHE COURT: [To defense counsel Mr. Levin] Who is your other client?\nMR. LEVIN [defense counsel]: Allen Duncan.\nTHE COURT: Mr. Duncan.\nDEFENDANT: Yes I do, judge.\nTHE COURT: You understand Mr. Levin is going to be representing Lamonte [sic] Lake on a jury trial and he\u2019s elected, been elected, you will be proceeding to a bench trial and he will be representing both of you. You understand that?\nDEFENDANT: Yes.\nTHE COURT: That\u2019s your wish?\nDEFENDANT: Yes.\nTHE COURT: All right.\u201d\nHere, defendant was specifically asked whether he wanted a bench trial and whether he understood that Mr. Levin would be representing him at the bench trial. Defendant responded directly to the trial court\u2019s inquiries. Thus, the record shows that defendant understandingly waived his right to a jury.\nIn People v. Asselborn, 278 Ill. App. 3d 960 (1996), the following colloquy occurred:\n\u201cTHE COURT: Have a seat. Jury waiver. Bench or jury?\nMR. LEVIN [Defense counsel]: It will be a bench your Honor.\u201d Asselborn, 278 Ill. App. 3d at 962.\nWe concluded that the defendant in that case properly waived his right to a jury trial in open court because he was present during the colloquy and failed to object to his counsel\u2019s actions. Asselborn, 278 Ill. App. 3d at 962-63.\nNotably, in Asselborn, the court spoke to the attorney in defendant\u2019s presence. Here, the court not only spoke to the attorney, the court spoke to the defendant and the defendant said yes and indicated that he understood that he was electing to proceed with a bench rather than jury trial. Thus, the record establishing waiver in the instant case is even stronger than the record in Asselborn.\nDefendant relies on People v. Scott, 293 Ill. App. 3d 241, 687 N.E.2d 1154 (1997), in which the Fifth District Appellate Court reversed the defendant\u2019s conviction because his written jury waiver had been filed outside open court. Furthermore, the defendant was not present when a jury waiver was finally mentioned and waived in open court. Scott, 293 Ill. App. 3d at 244. However, Scott is distinguishable from the instant case. Here, defendant was present in open court and responded directly to the trial court\u2019s inquiries. Accordingly, under Tooles, we cannot conclude that defendant failed to properly waive his right to a jury trial.\nII\nFinally, defendant argues that there was insufficient evidence to convict him of first degree murder under a theory of accountability. Specifically, he argues that the State failed to prove beyond a reasonable doubt that he was part of a common criminal design or common plan to commit a battery or to participate in the shooting that resulted in the death of Alvin Gilmore. We disagree.\nSection 5- \u2014 2(c) of the Criminal Code incorporates the common design rule, which provides that where two or more people engage in a common criminal design or agreement, any acts committed in furtherance of the plan by any one party are considered to be the acts of all the parties and all are accountable for those acts. 720 ILCS 5/5 \u2014 2(c) (West 1992); People v. Shelton, 293 Ill. App. 3d 747, 754, 688 N.E.2d 831 (1997); People v. Eubanks, 283 Ill. App. 3d 12, 20-21, 669 N.E.2d 678 (1996). Moreover, a defendant may be charged with murder based on a theory of accountability where the defendant enters a common design to commit only a battery, yet a murder is committed during the course of the battery. People v. McClain, 269 Ill. App. 3d 500, 505, 645 N.E.2d 585 (1995).\nHere, defendant was accountable for the actions of Lemont. The evidence presented indicates that defendant gave Lemont the 9 millimeter gun that was used in the shooting. The group met at the Lake home where Tineshea told the group, which included defendant, that they should \u201ckick [Orlando\u2019s] ass.\u201d At that point, Lemont displayed a gun and told Tineshea not to worry about it. Thus, defendant was a party to a common criminal design. See Eubanks, 283 Ill. App. 3d at 21. Defendant then left with the group and went directly to Lashundia\u2019s house with the intent to hurt Orlando Potts. After the shooting, defendant drove part of the group back to Lemont Lake\u2019s house. The fact that Lemont shot Alvin Gilmore during the execution of the group\u2019s common plan to hurt Orlando Potts is sufficient to hold defendant accountable for the shooting. In light of these circumstances, defendant was accountable for the murder of Alvin Gilmore.\nFor the reasons cited herein, the judgments of the circuit court of Cook County are affirmed. As part of our judgment, we grant the State\u2019s request and assess defendant $150 as costs for this appeal.\nAffirmed.\nMcNULTY, PJ., and TULLY, J., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Michael J. Pelletier and Donna Finch, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN DUNCAN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201496\u20143750\nOpinion filed June 16, 1998.\nMichael J. Pelletier and Donna Finch, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0446-01", "first_page_order": 464, "last_page_order": 472 }