A Defendant can be found guilty of an offense on a theory of accountability.
To prove the requisite intent, the State must establish either that
(1) The defendant shared the criminal intent of the principal or
(2) The two had a common criminal design—i.e., they both intended to commit some other crime that was advanced by the crime charged.
People v. Fernandez, 2014 IL 115527, ¶ 13.
“Words of agreement are not required to prove a common design or purpose,” which may instead “be inferred from the circumstances surrounding the crime.” People v. Willis, 2013 IL App (1st) 110233, ¶ 79. Nor is active participation in the offense a prerequisite to guilt by accountability. People v. Ruiz, 94 Ill. 2d 245, 254 (1982).
But I Didn’t “Do It!”
An accused defendant who was not the principal actor in a crime, the guy who “did it”, sometimes cannot make the mental leap to grasp accountability.
“How can I be guilty if I did not do it?”
Well, for the rest of us not accused of a serious crime we understand that the criminal law is broad enough to punish not only principal actors to a crime but also those individuals who aided and abetted in the commission of the crime.
Get-away drivers are in as big of trouble as the guy who walked into the bank with the gun to rob it.
Somehow my clients continue to be aware of the cases where courts have found that criminal liability did not exist. See People v. Cowart, 2015 IL App (1st) 113085. My main piece of advice in this area of the law continues to be that:
“Criminal liability is painted with a broad brush.”
Trust me, despite all the cases and “friends’ situations” that my clients know about it is my job to explain the law as clearly as I can and bring to their attention all the cases and other “real life” situations that demonstrate the broad breadth of criminal liability in our court system.
The Illinois Supreme Court and appellate courts do from time to time do reverse cases where the state stretched accountability a bit to far. For the most part, however, the courts are doing what they can to reinforce the message that accountability indeed does mean that one can be guilty for acts committed by others.
This is How I try to counsel my clients…
Criminal Liability Can Include Acts Committed by Others
One can be easily be found guilty for a criminal act that they did not commit. Further, one can be found guilty for a criminal act that one did not know was even going to happen.
At its core, criminal liability is just the idea that you can be punished for committing prohibited conduct. This is simply the premise that society has the right to decide what type of behaviour it wants to punish.
What is Criminal Liability?
Criminal liability is the way to describe the behavior that society has decided to punish. Criminal liability is also referred to as criminal accountability. This is the way society norms and standards are enforced. This part of the law is often included in the criminal code near the list of punishable crimes.
For example, In Illinois criminal liability is described in the criminal code under the section entitled, “When Accountability Exists.” This section tries to make it clear that a person can go to jail for a crime committed by another person.
In Illinois, this is what the law on accountability says:
A person is legally accountable for the conduct of another when: (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. When 2 or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the common design or agreement and all are equally responsible for the consequences of those further acts.
Remember, It’s a Broad Brush
The court system is doing what it can to remind criminal defense attorneys and defendants that the “common criminal design” rule of accountability is broad and far reaching.
The warning lights are flashing. Caution. Beware.
There is a defense argument that says that a person cannot be guilty for a crime committed by a second person if the first person did not have the same criminal intent of the second person. On its face, this seems like a logical argument.
No matter how logical it may seem, it is wrong.
Two Roadways to Accountability
Technically, the argument in court is that in order for a person to be criminally accountable for the conduct of another two things needed to be present. A person needs to have the same criminal intent AND share in a common criminal design with the second person.
The court system has shut this down. The courts are making it clear that any one of two pathways will lead a person to jail.
Car Burglary Example
An example will go a long way towards helping to explain this concept.
Say, a man (Fernandez) agrees to commit car burglaries with another person (Accomplice). Fernandez agrees to be the driver and Accomplice will do the actual deed of breaking into cars. Fernandez drives Accomplice around parking lots looking for cars to break into.
In one parking lot, a police squad rolls into the parking lot just as Accomplice is breaking the car window. If Accomplice takes out a gun and shoots it at the police officer, then Fernandez is also guilty of Aggravated Discharge of a Firearm. Fernandez may credibly claim that he did not know that Accomplice had a gun and certainly did not know that Accomplice was going to shoot at a cop!
That was not the plan. That was not Fernandez’s intent, and to shoot at cops was not a common design Fernandez shared with Accomplice.
Fernandez argues in court that he is only guilty of car burglaries and not the Aggravated Discharge of a Firearm because he did not share in Accomplishes “criminal intent” to shoot at the cop. Fernandez did not agree to a common criminal design that included a shooting so he cannot be guilty of that.
The law on criminal liability and accountability, however, says Fernandez is guilty of the shooting. This was a true story.
See People v. Fernandez, 2014 IL 115527 (March 20, 2014).
There is an “OR” in There!
You see, “under the Illinois accountability statute, the State may prove a defendant’s intent to promote or facilitate an offense by showing either (1) that the defendant shared the criminal intent of the principal, or (2) that there was a common criminal design.” See People v. Fernandez.
This court is emphasizing that under the rules of criminal accountability there are two distinct pathways to a guilt. The “or” is very important.
The obvious, pathway includes sharing the same criminal intent with the principle actor. If the plan was to shoot at cops, and your partner shoots at cops, then clearly you are also guilty of shooting at cops.
However, the second pathway to criminal liability includes merely sharing a common criminal design with another person. The common criminal design does not have to be for the actual crime that is committed. If you agree to commit a retail theft and your partner shoots someone in the store. It does not matter that you did not know your partner had a gun. Under the second pathway of accountability, you would be guilty of the shooting your partner commits in the store.
Just to be sure this is clear let’s consider another example.
Now lets say a different defendant (Phillips) wants to go beat-up a person. Phillip takes his friend (the Accused). The Accused brings a rifle just in case things get ugly in the fight.
When Phillips and the Accused get to the party where they want to fight they notice that the crowd is much bigger than they expected. Phillips calls off the whole thing. As they are walking away from the crowd, the Accused stops, turns around and fires one random shot into the crowd.
The bullet hits an innocent person in the head, and that person is killed.
Phillips and the Accused are charged with murder. Phillips defends the case in court by saying that he is not accountable for the murder committed by the Accused. Defendant claims that he did share in the criminal intent to commit the shooting nor did he have a common criminal design with the Accused to commit the killing.
This is also an actual case. See People v. Phillips, 2014 Ill App (4th) 120695 (June 18, 2014).
The Court Ruling
In the above case, the court found Defendant accountable for the murder and he was convicted. This is what the court ruled:
Defendant’s argument that the State was required to prove that he shared [the Accused’s] intent to fire the rifle illustrates the erroneous conflation of two distinct bases for proving legal accountability: (1) shared intent (sometimes referred to as “specific intent”) and (2) common design. As the supreme court explained in Fernandez, “it is well settled that, under the Illinois accountability statute, the State may prove a defendant’s intent to promote or facilitate an offense by showing either (1) that the defendant shared the criminal intent of the principal, or (2) that there was a common criminal design.” Quoting Fernandez, 2014 IL 115527, 21, 6 N.E.3d 145. In other words, accountability cases fall into two distinct categories: (1) shared-intent cases and (2) common-design cases.
See People v. Phillips.
Phillips agreed to commit a crime with the Accused. In that sense, he shared a common design to commit crime the Accused. The act of deciding to not fight because the crowd was too big, was still considered part of the common design to fight.
Because the Accused fired the gun during the commission of the common design (decision to go fight), Phillips is criminally accountable for the killing.
It’s a Deterrent Effect
The Phillips court also wrote that:
“the common-design rule provides harsh medicine for those who willingly join with others to engage in criminal acts. Just as the felony-murder doctrine “seeks to deter persons from committing forcible felonies by holding them responsible for murder if a death results,” the common-design rule “seeks to deter persons from intentionally aiding or encouraging the commission of offenses.”” See People v. Phillips.
Therefore, this broad interpretation of criminal accountability is purposely created as a deterrent to crime in general. It is not a mistake, that one can go to jail for associating with those who commit more serious crimes.
Be Careful Who You Commit Crime With (Maybe Don’t Do it)
The general message to the public is that one should be very careful about the decisions they make. Agreeing to commit a less serious crime can very easily get you in trouble for much more serious crimes. If your partners in petty crime get out of hand or if they have something else planned, that can be very bad news for you as well.
- People v. Calderon, 369 Ill.App.3d 221 (2nd Dist. 2006) (defendant either the shooter or he hands the gun to the shooter make him accountable)
- People v. Lee, 243 Ill.App.3d 29 (2nd Dist. 1993) (drove the victim to the scene of the robbery)
- People v. Kessler, 11 Ill.App.3d 321 (2nd Dist. 1973) (accountability on an attempt charge is a specific intent crime)
- People v. Garrett, 401 Ill.App.3d 238 (1st Dist. 2010) (felony murder reversed when state did not show the victim died in an attempt robbery at the hands of the co-defendants)
- People v. Shelton, 293 Ill.App.3d 747 (1st Dist. 1997) (accountability requires an act in furtherance o the crime planned and intended)
- People v. Brown, 197 Ill.App.3d 907 (1st Dist. 1990) (defendant unlocked the door allowing the robbers inside)
- People v. Washington, 942 F.2d 1155 (7th Cir. 1991) (state couldn’t prove that the victim was shot by the co-defendants)
- People v. Redmond, 341 Ill.App.3d 498 (1st Dist. 2003) (defendant agreed to a robbery but then co-defendant shoots the victim both guilty of murder)
- People v. Chirchirillo, 393 Ill.App.3d 916 (2nd Dist. 2009) (principle must commit the crime charged – weird facts – would have been accountable for co-defendant’s possession of a gun)
- People v. Taylor, 164 Ill.2d 131 (1995) (accountable on murder, no retreat or attempt to stop is consistent with common design)
- People v. Thomas, 242 Ill.App.3d 266 (2nd Dist.1993) (reverse drug deal defendant never touches the 10 pounds of weed but he’s still guilty)
- People v. Burton, 338 Ill.App.3d 406 (1st Dist. 2003) (child abuse accountability case – a parental accountability case)
- People v. Stanciel, 153 Ill.2d 218 (1992) (child abuse case, paramour is the principle, but mother is accountable)
- People v. Pollock, 202 Ill.2d 189 (2002) (this mother is not guilty in a parental accountability case)
- People v. Perez, 189 Ill.2d 254 (2000) (defendant had no common design or criminal intent to shoot the victim so not guilty)
- People v. Dennis, 181 Ill.2d 87 (1998) (felony murder is broader than accountability – discuses when a robbery is complete and exactly when accountability for a killing kicks in)
- People v. Cooper, 194 Ill.2d 419 (2000) (accountable under felony murder not necessarily accountability statute)
- People v. Parker, 311 Ill.App.3d 80 (1st Dist. 1999) (not all defendants are guilty of all the charges – they put an M-180 down a man’s pants and put him in the trunk)
- People v. Taylor, 186 Ill.2d 439 (1999) (defendant can’t be guilty of aggravated discharge because he didn’t know co-defendant was going to shoot from the car)
- People v. Williams, 324 Ill.App.3d 419 (1st Dist. 2001) (15 year old guilty of murder when he was present at the meeting where gang “war” was declared and he was present at the shooting)
- People v. Cole, 253 Ill.App.3d 603 (4th Dist. 1993) (common design need not be for the crime charged)
- People v. Perez, 189 Ill.2d 254 (2000) (defendant is not accountable for the gang killing merely for being present at the scene of the crime)
- People v. Mullen, 313 Ill.App.3d 718 (1st Dist. 2000) (defendant is accountable for the killing for being present for a gang beating leading to death of victim because)
- People v. Banks, 260 Ill.App.3d 464 (1st Dist. 1994) (defendant accountable for this shooting because he actively participated)
- See the following gang accountability cases: Moreno, 238 Ill.App.3d 626, Cooks, 253 Ill.App.3d 184, Burnom, 338 Ill.App.3d 495 (felony murder case), Leason, 352 Ill.App.3d 450
- finally see also: Kessler, 57 Ill.2d 493; Terry, 99 Ill.2d 508; Taylor, 199 Ill.App3d 933
- People v. Baney, 229 Ill.App.3d 770 (2nd Dist. 1992) (accountability is inconsistent with a lesser included offense of recklessness, ie accountability is mutually exclusive with recklessness)