{ "id": 186577, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL THOMPSON, Defendant-Appellant", "name_abbreviation": "People v. Thompson", "decision_date": "2000-05-18", "docket_number": "No. 1\u201497\u20144558", "first_page": "510", "last_page": "521", "citations": [ { "type": "official", "cite": "313 Ill. App. 3d 510" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "572 N.E.2d 895", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "143 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591083 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/143/0082-01" ] }, { "cite": "372 N.E.2d 1093", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 84", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3418816 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0084-01" ] }, { "cite": "610 N.E.2d 1289", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120083 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0209-01" ] }, { "cite": "688 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "in a case where unintended victims were shot, defendant could have been convicted of murder based on an accountability theory if the jury believed that he ordered his fellow gang members to fire into a crowd" } ], "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 747", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847506 ], "year": 1997, "pin_cites": [ { "parenthetical": "in a case where unintended victims were shot, defendant could have been convicted of murder based on an accountability theory if the jury believed that he ordered his fellow gang members to fire into a crowd" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0747-01" ] }, { "cite": "645 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "two defendants properly convicted of attempted murder under theories of accountability and transferred intent even though there was no conclusive evidence as to which defendant fired the shot that actually hit the victim" } ], "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365859 ], "year": 1994, "pin_cites": [ { "parenthetical": "two defendants properly convicted of attempted murder under theories of accountability and transferred intent even though there was no conclusive evidence as to which defendant fired the shot that actually hit the victim" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0067-01" ] }, { "cite": "556 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474002 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0986-01" ] }, { "cite": "625 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "court found that the evidence sufficiently demonstrated a common design and a community of unlawful purpose between defendant and the second unknown shooter" } ], "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5425511 ], "year": 1993, "pin_cites": [ { "parenthetical": "court found that the evidence sufficiently demonstrated a common design and a community of unlawful purpose between defendant and the second unknown shooter" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0184-01" ] }, { "cite": "391 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5583821 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0713-01" ] }, { "cite": "652 N.E.2d 1252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 412", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258528 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0412-01" ] }, { "cite": "665 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75225 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/1027-01" ] }, { "cite": "942 F.2d 1155", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10527903 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1160" } ], "opinion_index": 0, "case_paths": [ "/f2d/942/1155-01" ] }, { "cite": "641 N.E.2d 948", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 482", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333114 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0482-01" ] }, { "cite": "662 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156789 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0343-01" ] }, { "cite": "665 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "171 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57344 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "376" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0367-01" ] }, { "cite": "687 N.E.2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "178 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385522 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/178/0001-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "586 N.E.2d 1261", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "146 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596932 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/146/0363-01" ] }, { "cite": "514 N.E.2d 970", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "118 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188484 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/118/0163-01" ] }, { "cite": "633 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780288 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/158/0275-01" ] }, { "cite": "509 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 309", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3506824 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0309-01" ] }, { "cite": "455 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "97 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516622 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/97/0487-01" ] }, { "cite": "451 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 384", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3520847 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0384-01" ] } ], "analysis": { "cardinality": 1031, "char_count": 26167, "ocr_confidence": 0.756, "pagerank": { "raw": 1.2312403007543552e-07, "percentile": 0.6057293301655811 }, "sha256": "7efeabb0803dd1d929db631015a6b6ad2bb2dc04648c6d84779bf12fb4c711ca", "simhash": "1:627d3599f895db28", "word_count": 4429 }, "last_updated": "2023-07-14T18:54:53.541010+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. MICHAEL THOMPSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HALL\ndelivered the opinion of the court:\nDefendant, Michael Thompson, was charged with two counts of first degree murder. Jamal Harmon, Eugene Wiseman, and Craig Newton were also charged by the same indictment with first degree murder but were not tried with defendant. Following a jury trial, defendant was found guilty of first degree murder under an accountability and transferred intent theory. Defendant filed a timely motion for a new trial on July 24, 1997, and an amended motion for a new trial on July 25, 1997. Both were denied. On September 18, 1997, defendant was sentenced to serve a 75-year prison term. Defendant filed a motion to reconsider sentence. On October 23, 1997, defendant was resentenced to 60 years. Defendant filed a timely notice of appeal on November 11, 1997.\nOn appeal defendant contends: (1) that the State failed to prove him guilty beyond a reasonable doubt of first degree murder; (2) that several remarks made by the prosecutor during closing arguments prevented him from receiving a fair trial; (3) that the circuit court erred in admitting improper and prejudicial evidence; and (4) that the circuit court erred by refusing to give the cautionary accomplice jury instruction. For the following reasons, we reverse and remand this cause for a new trial. The following facts are relevant to our determination in this appeal.\nBACKGROUND\nOn June 19, 1995, A.Z., an innocent female bystander, was shot and killed in Marquette Park during a gang fight. The incident involved two rival street gangs, the Black Disciples and the \u201cKrazy Get Down Boys\u201d (KGB\u2019s). In the summer of 1995, defendant was a member of the Black Disciples holding the rank of co-minister. Harmon, Wiseman and Newton were also Black Disciples. In the summer of 1995, Eddie Frazier, Jr., Derrick Johnson and April Alston were also Black Disciples.\nBlanca Morales testified that on the evening of June 19, 1995, she, the victim, and a friend named Matilda drove into Marquette Park and parked next to a bridge by a pond inside the park. The three exited the car and stood looking at the water. Morales saw a group of Hispanics standing on a nearby bridge. Suddenly, numerous gunshots came from behind where the females were standing. The females ducked behind the car. After the gunshots ceased, Morales discovered the victim lying on the ground with blood coming from her arm. Morales, with the help of Matilda and the people from the bridge, put the victim in her car and drove her across a field to Holy Cross Hospital. The victim was pronounced dead at Holy Cross Hospital.\nBoth Frazier and Johnson testified that on June 18, 1995, they were in Marquette Park with two females when they were approached by a group of KGBs. One of the KGBs hit Frazier in the head with a gun. As Frazier and Johnson started running, the KGBs began shooting at them. Johnson testified that he told Harmon about the incident that night.\nAlston admitted that, at the time of the trial, she was in custody in Cook County jail facing a charge for heinous battery. This charge was not connected to the present case. Alston testified that she expected no leniency in exchange for her cooperation with the State in this case.\nOn June 19, 1995, at 8 p.m., Alston was on the defendant\u2019s front porch with defendant and some other Black Disciples. Alston testified that she saw defendant, Harmon, and Newton go upstairs into the defendant\u2019s house. After a short time she saw Harmon leave the house carrying a black gym bag that he placed in the trunk of Newton\u2019s car. She could not see what was inside the black gym bag. She testified that defendant told her to get into Newton\u2019s car. She did. Defendant drove Harmon, Wiseman, and a Black Disciple named Rickey to the edge of Marquette Park in Harmon\u2019s car. Newton and Alston followed in Newton\u2019s car. Once at the park, Alston testified that she got out of Newton\u2019s car and got into Harmon\u2019s car. She saw Harmon, Wiseman, and Rickey get out of Harmon\u2019s car and open the trunk of Newton\u2019s car. Alston and defendant then drove away from Marquette Park and returned to defendant\u2019s front porch. On the way back to defendant\u2019s house, defendant told her that there was going to be a retaliation in the park.\nAlston testified that Newton, Wiseman, Rickey, and Harmon returned to defendant\u2019s house about 10 to 15 minutes later. She saw Harmon take the black gym bag out of Newton\u2019s trunk and bring it into defendant\u2019s house.\nIn May 1996, after being contacted by defendant and his wife, Alston gave defense counsel a court-reported recantation of her prior statements. Alston\u2019s trial testimony was consistent with both her police statement and her grand jury testimony except that in those pretrial statements she denied membership in the Black Disciples.\nFrazier testified that he retired from the Black Disciples on June 20, 1995. During this trial, Frazier was in custody on an outstanding McLean County warrant from breaking a person\u2019s jaw. Frazier testified that he expected no consideration from the State on his pending case in exchange for his cooperation in this case.\nFrazier testified that, on June 19, 1995, he was on defendant\u2019s porch for about six minutes before he left and went home. Frazier heard defendant talking to Wiseman about a hit in the park that night. When Frazier later returned to defendant\u2019s house, Wiseman showed Frazier a .38-caliber gun and stated that they had taken care of business for him. Frazier identified People\u2019s exhibit No. 13 as a gun he had seen in defendant\u2019s house about a year before.\nIn the fall of 1995, after being contacted several times by defendant and his wife, Frazier gave a court-reported recantation of his earlier statements. His trial testimony, however, was consistent with his earlier statements to police and his grand jury testimony.\nJohnson testified that on June 19, 1995, at 9 p.m., he was on the defendant\u2019s front porch. He heard defendant tell Harmon and Wise-man to park at 70th and California and walk through Marquette Park because the KGBs should be there. He then told them to \u201cspray the mother f-kers,\u201d which Johnson interpreted as a command to shoot KGBs. He saw defendant, Harmon, and Newton go upstairs in defendant\u2019s house. When they came out, about five minutes later, Harmon was carrying an Uzi machine gun pistol while defendant carried a black gym bag. He said that he and Frazier had seen the same Uzi machine gun and black gym bag one year earlier on defendant\u2019s bed. Johnson identified People\u2019s exhibit No. 13 as the gun that he saw Harmon carry out of defendant\u2019s house. After Harmon, Wiseman, Newton and Rickey returned to defendant\u2019s porch, defendant told Johnson \u201cwe got the mother f-kers. Tell Eddie that it was taken care of.\u201d\nAfter being contacted several times by defendant and his wife, Johnson gave a court-reported recantation of his prior statements. However, his trial testimony was entirely consistent with his earlier statements to police and his grand jury testimony.\nDetective Bloore testified that Newton led police to a garage at 6924 S. Laflin, where the police recovered an Uzi machine gun pistol in a white bag. Ernest Warner, an expert in firearms, testified by stipulation that the bullet was a 9 millimeter, but was unsuitable for comparison due to its damaged condition. He further testified that the bullet had the same class characteristics as the 9 millimeter Uzi recovered by the police and that the bullet could have been fired by that gun.\nDISCUSSION\nI. CLOSING ARGUMENT\nDefendant argues that several errors occurred in the State\u2019s closing argument. We need only discuss one. Defendant argues that the prosecutor improperly accused defense counsel, Mr. Sherwin, of trying to \u201cfix\u201d this case:\n\u201cSexton: Is it real surprising they went to his office? And how about this, folks, you think it\u2019s a coincidence that not just one or two, all three of the witnesses who happened to be witnesses against Michael Thompson, they all go to the lawyer\u2019s office. I mean he\u2019s talking about how he\u2019s entitled to the documents, what are we talking about here? We\u2019re talking about the law firm of Sherwin and Thompson here. Thompson is the leg man. He\u2019s the one who\u2019s going to get the witnesses in, get them to change their testimony and set it up and hand it over to his lawyer. So he can fix the case then.\u201d\nComments, such as these, disparaging the integrity of defense counsel and implying that the defense presented was fabricated at the direction of counsel have consistently been condemned. People v. Starks, 116 Ill. App. 3d 384, 451 N.E.2d 1298 (1983); People v. Emerson, 97 Ill. 2d 487, 455 N.E.2d 41 (1983). Accusations of deception and trickery by defense counsel serve no purpose except to prejudice the jury. People v. Beringer, 156 Ill. App. 3d 309, 509 N.E.2d 578 (1987).\nThe State argues that these comments were proper because they referred to defendant, not to defense counsel. We disagree. The clear implication of these comments was that defendant and defense counsel were engaged in some nefarious plan to obtain witness recantations and to \u201cfix\u201d defendant\u2019s case. The State further argues that any error associated with these comments was harmless because the trial court sustained an objection to these comments and admonished the jury to disregard the implication that defense counsel did anything improper. The act of promptly sustaining the objection and instructing the jury to disregard such argument is usually sufficient to cure any prejudice. People v. Childress, 158 Ill. 2d 275, 633 N.E.2d 635 (1994). But not always. We find that the prejudice from the comments in this case was of such a magnitude that the jury was poisoned. The court\u2019s admonishments after the fact could not erase the serious damage that was already done.\nIn general, a prosecutor is given great latitude during closing argument. People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970 (1987). However, prosecutors must remember that there are limits. We find that the prosecutor far exceeded those limits in this case. Improper comments during closing argument warrant reversal where the argument as a whole was so seriously prejudicial that it deprived the defendant of a fair trial. We find that the prosecutor\u2019s comments so seriously prejudiced defendant that he was denied a fair trial and is entitled to a new one.\nII. REASONABLE DOUBT\nOur disposition makes it unnecessary for us to consider the remaining issues raised by defendant on appeal. However, we note our belief that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt.\nA criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant\u2019s guilt. People v. Campbell, 146 Ill. 2d 363, 586 N.E.2d 1261 (1992); People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). When a defendant challenges the sufficiency of the evidence, we must decide whether, after considering all of 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. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); People v Howery, 178 Ill. 2d 1, 687 N.E.2d 836 (1997).\nA person commits first degree murder if he performs the acts that cause the death of a person, and either intends to kill or do great bodily harm to that person or another, or knows that such acts will cause death to that person or another. 720 ILCS 5/9 \u2014 1(a)(1) (West 1996). To convict a defendant of murder based on an accountability theory, the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the murder; (2) the defendant\u2019s participation occurred either before or during the commission of the murder; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the murder. 720 ILCS 5/5 \u2014 2(c) (West 1996); People v. Batchelor, 171 Ill. 2d 367, 665 N.E.2d 777 (1996). Active participation is not a requirement for imposing criminal liability under an accountability theory since a defendant may aid and abet without actively participating in the overt act. Batchelor, 171 Ill. 2d at 376. The intent to promote or facilitate a crime may be shown by evidence that the defendant shared the criminal intent of the principals or by evidence that there was a common criminal plan or design. Batchelor, 171 Ill. 2d at 376.\nThe law of accountability incorporates the \u201ccommon design rule,\u201d which provides that, where two or more persons engage in a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts. People v. Smith, 278 Ill. App. 3d 343, 662 N.E.2d 480 (1996). When a defendant is convicted on an accountability theory, he shares equal guilt with the principal perpetrators of the crime. People v. Brown, 267 Ill. App. 3d 482, 641 N.E.2d 948 (1994).\nUnder the doctrine of transferred intent, if a defendant shoots at one person, with the intent to kill, but kills an unintended victim, he may be convicted of the crime of murder for the death of the unintended victim.\nDefendant argues that he could not be proved guilty beyond a reasonable doubt of first degree murder on an accountability and transferred intent theory because the State failed to identify the shooter or the target. Defendant points out that there was no testimony as to who actually shot the victim. No witness testified that he saw any Black Disciples in Marquette Park on the night in question. Defendant argues that no rational inference can be drawn from the evidence that either Harmon, Wiseman, Newton or Rickey was the shooter. We disagree.\nDefendant relies on Fagan v. Washington, 942 F.2d 1155 (7th Cir. 1991), where the seventh circuit found that the State did not prove the accomplice defendant guilty of murder under an accountability theory because the prosecution did not prove the identity of the principal shooter beyond a reasonable doubt. In that case, the defendant and several fellow Black Gangster Disciple (BGD) gang members went to a game room that was known to be a Vice Lords hangout. The BGDs were seeking revenge against the rival Vice Lord gang members. Defendant and Dede, another BGD, fired several shots into a group standing out in front of the game room. Defendant and Dede were about 45 feet away from the group when they fired. The evidence established that neither defendant nor Dede fired the fatal bullet. Thus, defendant was found not guilty based on an accountability theory.\nThe seventh circuit recognized that it did not matter whether Fagan or some other member of his gang fired the fatal bullet.\n\u201cThe group had vowed revenge. Their scheme encompassed the murder of anyone whom they believed to be a Vice Lord (whether or not he really was). Their common design embraced the killing of Billy Green on the sidewalk in front of the game room by any member of the group. But not by a non-member.\u201d Fagan, 942 F.2d at 1160.\nThe evidence conclusively established that defendant and Dede were not the shooters. There was absolutely no evidence that any other BGD that was there was armed or close enough to the victim to have fired the fatal shot. In light of the total lack of supporting evidence, the seventh circuit found that the trial court had erred in assuming that the fatal bullet must have come from a gun fired by one of the BGDs.\nThe present case is distinguishable from Fagan. Here there is sufficient evidence to support the inference that the fatal shot was fired by a Black Disciple, specifically either Harmon, Newton, Wiseman, or Rickey. The evidence in this case established that, in the summer of 1995, defendant was a high-ranking leader of the Black Disciples. Harmon, Newton, Wiseman, and Rickey were all below defendant in the gang hierarchy.\nOn June 18, 1995, two Black Disciples, Frazier and Johnson, had a run-in with a group of KGBs in Marquette Park. Frazier was pistol whipped and both men were shot at by the rival gang. On the evening of June 19, 1995, Frazier and Johnson were on defendant\u2019s front porch with defendant and several other Black Disciples. Frazier heard defendant and Wiseman discussing a hit in the park that night. Frazier was paged by his father and went home. He returned to defendant\u2019s house about 45 minutes later.\nHarmon and Newton arrived at defendant\u2019s house in their cars. Johnson heard defendant tell Harmon and Wiseman to park on 70th and California and to walk through the park and the KGBs should be right there. Defendant also told them to \u201cspray\u201d (shoot) the KGBs. Johnson saw defendant, Harmon, and Wiseman enter defendant\u2019s house. The three emerged moments later with Harmon carrying a 9 millimeter Uzi and defendant carrying a black gym bag. These items were placed in the trunk of Newton\u2019s car. The bullet eventually removed from the victim\u2019s body was a 9 millimeter.\nDefendant drove Harmon, Wiseman and Rickey in Harmon\u2019s car to the edge of Marquette Park. Alston and Newton followed in Newton\u2019s car. Once at the edge of Marquette Park, Alston joined defendant in Harmon\u2019s car and they drove away, leaving the others at the park. As Alston and defendant pulled away, Alston saw Harmon, Wiseman, Newton, and Rickey looking in Newton\u2019s open trunk, where the 9 millimeter Uzi and black gym bag had been previously placed. As they left Marquette Park, defendant told Alston that there was going to be a retaliation in the park for what happened to Frazier and Johnson.\nMoments later, Harmon, Wiseman, Newton, and Rickey returned to defendant\u2019s house. Johnson saw Harmon bring the black gym bag back into defendant\u2019s house. Defendant told Johnson that \u201cthey got the mother f \u2014 kers and tell Eddie it was taken care of.\u201d Wiseman showed Frazier a .38-caliber gun and said that they had taken care of business for him.\nFollowing the shooting, the police were led to the 9 millimeter Uzi by Newton. The firearms expert testified that the 9 millimeter bullet recovered from the victim\u2019s body could have come from the 9 millimeter Uzi recovered by police. Both Johnson and Frazier identified the 9 millimeter Uzi recovered by police as the same Uzi they saw in defendant\u2019s bedroom on a prior occasion. Johnson further identified it as the 9 millimeter Uzi he saw Harmon carry out of defendant\u2019s house just moments before the shooting.\nThe reasonable inference to be drawn from this evidence is that Harmon, Newton, Wiseman, and Rickey were in Marquette Park, armed with the Uzi and a .38, and intending to kill any one they thought was a KGB.\nThe fact that defendant was not present at the time of the shooting is irrelevant as the evidence clearly established that defendant actively participated in the planning of the offense, provided his codefendants with the weapon that fired the fatal bullet, and drove his codefendants to the scene of the offense. See 720 ILCS 5/5 \u2014 2(c) (West 1996); People v. Nino, 279 Ill. App. 3d 1027, 665 N.E.2d 847 (1996); People v. Smith, 278 Ill. App. 3d 343, 662 N.E.2d 480 (1996).\nDefendant argues that the people on the bridge could have fired the fatal shot. However, Morales testified that the shots came from behind her and she was facing the bridge. Moreover, there is no evidence that the people on the bridge were armed. Defendant further argues that Matilda, the victim\u2019s friend, could have fired the fatal shot. There is simply no evidence that she was armed. Defendant suggests that the fatal shot could have been fired by a shooter from another gang. There was no evidence that any other armed gang was present in the area at the time of the shooting.\nThe evidence is sufficient to support the inference that either Harmon, Newton, Wiseman, or Rickey was the shooter.\nDefendant further argues that he cannot be held accountable because the State did not prove which of the four actually fired the fatal bullet. According to defendant, where the prosecution fails to identify the principal shooter there is no intent to kill to be transferred nor common design to be agreed upon by the unknown shooter and the defendant. Defendant\u2019s reliance on People v. Peterson, 273 Ill. App. 3d 412, 652 N.E.2d 1252 (1995), and People v. Lopez, 72 Ill. App. 3d 713, 391 N.E.2d 105 (1979), is misplaced.\nIn Peterson, the two defendants argued and began shooting at one another, injuring an innocent bystander. The trial court found both defendants guilty of aggravated discharge of a firearm because they engaged in a course of criminal conduct, the foreseeable result of which was injuring an innocent bystander. On appeal, the court held that the defendants were acting at cross purposes, shooting at each other. The gunfight was spontaneous. There was no evidence that either defendant aided or abetted the other in furtherance of a common criminal design. Because the evidence did not establish that each defendant intended to promote or facilitate the other\u2019s conduct, the court held that the two defendants could not be held accountable for each other\u2019s conduct. The reasons they were not held accountable for each other\u2019s actions had nothing to do with the fact that the prosecution could not prove which defendant actually shot the bystander.\nSimilarly, in Lopez, the court found the evidence did not support a finding of accountability. Again, as in Peterson, this finding had nothing to do with the fact that the prosecution could not establish which defendant actually shot the victim. Rather, it had to do with the fact that there was no evidence of a common criminal plan or design or that the defendant shared the criminal intent of the principals.\nDespite defendant\u2019s contention to the contrary, neither the Peterson court nor the Lopez court held that a defendant may never be held accountable for the conduct of a group unless the shooter from that group is specifically identified. Nor did either court hold that the doctrine of transferred intent can never be applied in conjunction with the doctrine of accountability unless the shooter is specifically identified.\nThe prosecutor does not have to establish which member of a group fired the fatal bullet, as long as everyone in the group is accountable for each other\u2019s actions. See People v. Cooks, 253 Ill. App. 3d 184, 625 N.E.2d 365 (1993) (court found that the evidence sufficiently demonstrated a common design and a community of unlawful purpose between defendant and the second unknown shooter); People v. Foster, 198 Ill. App. 3d 986, 556 N.E.2d 1214 (1990); People v. Burrage, 269 Ill. App. 3d 67, 645 N.E.2d 455 (1994) (two defendants properly convicted of attempted murder under theories of accountability and transferred intent even though there was no conclusive evidence as to which defendant fired the shot that actually hit the victim); People v. Shelton, 293 Ill. App. 3d 747, 688 N.E.2d 831 (1997) (in a case where unintended victims were shot, defendant could have been convicted of murder based on an accountability theory if the jury believed that he ordered his fellow gang members to fire into a crowd).\nNext defendant argues he was not proved guilty beyond a reasonable doubt because the State failed to identify the gun used in the shooting. First it should be noted that the State is not required to locate a gun and prove that it was the gun actually used in the shooting. People v. Nitz, 242 Ill. App. 3d 209, 610 N.E.2d 1289 (1993); People v. Carter, 57 Ill. App. 3d 84, 372 N.E.2d 1093 (1978). Second, there was sufficient testimony to identify the gun used to shoot the victim. Dr. Cogan testified that the victim died of a gunshot wound to the back. Ernest Warner, the police firearms expert, testified that the bullet recovered from the victim was a 9 millimeter and could have come from the Uzi shown to him at trial. Both Johnson and Frazier identified the Uzi shown to them at trial as the same gun they saw on defendant\u2019s bed about a year before the shooting. Moreover, Johnson identified it as the same gun he saw Harmon carry out of defendant\u2019s house on the night of the shooting. The police were led to the gun by Newton, a codefendant in the case.\nFinally, defendant attacks the credibility of Alston, Frazier, Johnson, and Assistant State\u2019s Attorney Thomas, arguing that their testimony cannot constitute proof beyond a reasonable doubt. This argument also fails. It is well settled that credibility determinations are exclusively within the province of the jury. People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991). Here the jury heard the testimony of each of these witnesses, was made aware of the infirmities in each witness\u2019s testimony and chose to believe these witnesses. We cannot now substitute our judgment for that of the trier of fact.\nAfter considering all of the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that the essential elements of the crime were met by the evidence. This does not mean that we are making a finding as to defendant\u2019s guilt or innocence that would be binding on retrial. Rather, our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. See People v. Beringer, 156 Ill. App. 3d 309, 509 N.E.2d 578 (1987).\nAccordingly, for the reasons set forth above, the judgment of the circuit court of Cook County is reversed and this cause is remanded for a new trial.\nReversed and remanded.\nHOFFMAN, EJ., and SOUTH, J., concur.", "type": "majority", "author": "JUSTICE HALL" } ], "attorneys": [ "Scott D. Sherwin, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Jon J. Walters, and Katherine Blakey Cox, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL THOMPSON, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201497\u20144558\nOpinion filed May 18, 2000.\nScott D. Sherwin, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Jon J. Walters, and Katherine Blakey Cox, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0510-01", "first_page_order": 528, "last_page_order": 539 }