FILED

June 18, 2014 Carla Bender NO. 4-12-0695 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County DEMETRICE C. PHILLIPS, ) No. 06CF1346 Defendant-Appellant. ) ) Honorable ) Lisa Holder White, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.

OPINION

¶1 On September 7, 2006, defendant, Demetrice C. Phillips, went to a house in

Decatur planning to attack a woman who fought with his ex-girlfriend earlier that day.

Defendant intended to give the woman a black eye because his ex-girlfriend suffered a black eye

when a brick struck her in the face during the earlier altercation. Defendant was accompanied by

Shaunessy Grimes, who, anticipating that crowd control might be necessary, brought a rifle.

After approaching the house from a back alleyway, defendant and Grimes realized that the crowd

outside the house was too large for them to carry out their plan. Before leaving, Grimes fired a

single shot from the rifle in the direction of the crowd. The .22-caliber bullet struck Jeremiah

Maclin in the back of the head, killing him. After learning of Maclin's death, defendant tossed

the rifle into the Sangamon River. ¶2 In May 2012, based upon these largely undisputed facts, the trial court, in a bench

trial, found defendant guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 2006)) and

unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2006)). In July 2012,

the court sentenced defendant to 35 years in prison for first degree murder and 10 years in prison

for aggravated possession of a weapon by a felon, with both sentences to run concurrently.

¶3 Defendant appeals, arguing that the State failed to prove him guilty of first degree

murder beyond a reasonable doubt because (1) Grimes's shooting of Maclin was an independent

act not done in furtherance of the original plan, (2) defendant had withdrawn from the original

plan, and (3) defendant did not share Grimes's intent. We disagree and affirm.

¶4 I. BACKGROUND

¶5 The following pertinent facts, which defendant does not dispute, were gleaned

from evidence presented at trial.

¶6 On September 7, 2006, Stephanie Boyd (the mother of defendant's two children)

and Breanna Turner (the mother of Grimes's child) got into a brawl with Quinishia Frazier and

several other young women because Turner suspected Frazier of being romantically involved

with Grimes. During the skirmish, which occurred outside Frazier's house on the corner of

Marietta and Vandyke Streets in Decatur, Boyd was struck in the face with a brick, causing her

eye to swell shut.

¶7 After the fight ended, Boyd and Turner went to defendant's house and told him

what happened. Boyd then drove Turner and defendant to Turner's mother's house, where they

met up with Grimes. All four agreed to go to Marietta and Vandyke Streets to confront Frazier.

On the way, the group stopped by Grimes's house so that Grimes could retrieve his .22-caliber,

-2- single-shot rifle. Boyd then drove to the area of Vandyke and Marietta Streets, where the fight

with Frazier had occurred earlier in the day.

¶8 It was dark outside when the group arrived in the area of Marietta and Vandyke

Streets. Traveling east on Marietta Street, Boyd drove past a large crowd at the intersection of

Vandyke Street and turned south onto Pine Street. Defendant told Boyd to turn west off Pine

Street into an alleyway that ran behind the houses on Marietta Street. Boyd parked the car in the

alleyway and defendant and Grimes got out. Grimes carried the rifle. Boyd and Turner stayed in

the car.

¶9 Defendant testified that he got out of the car planning to hurt somebody.

Specifically, defendant wanted to find Frazier and "swell her eye up." Because defendant did not

know Frazier, Grimes was to point her out for him. Defendant also told Grimes to make sure

that nobody jumped him while he attacked Frazier, and he anticipated that Grimes would use the

rifle to accomplish that task.

¶ 10 Defendant and Grimes walked west down the alleyway and cut north between a

pair of houses. Defendant and Grimes hid behind the houses for several minutes under the cover

of darkness and observed a crowd of approximately 15 to 30 people gathered on the southeast

corner of Marietta and Vandyke Streets. Upon realizing how large the crowd was, defendant

told Grimes that he "was not fitting to get jumped," which meant that he did not want to attack

Frazier because he would probably get attacked by members of the crowd if he did so.

¶ 11 Defendant testified that he "was fitting to leave" when a white car pulled into the

alleyway and switched off its lights. Defendant and Grimes returned to their hiding spot behind

the houses. Grimes told defendant to "wait for a minute." Grimes then walked to the front of

-3- one of the houses, out of defendant's view, and fired a single shot. Defendant and Grimes ran

back to the car, at which point Grimes told defendant that he thought "he merked someone,"

which defendant interpreted to mean that Grimes had shot someone. Defendant and Grimes got

into the car with Boyd and Turner, and the group fled the scene.

¶ 12 A day or two later, when it became apparent that defendant, Grimes, Boyd, and

Turner were under investigation, defendant agreed to help Grimes get rid of the rifle. Defendant

and Grimes took the rifle to a bridge over the Sangamon River, and defendant threw it into the

water. Grimes told defendant to "stick to the script," which defendant interpreted to mean that he

should not say anything to anyone about the shooting. Upon being interviewed by detectives,

defendant initially denied any involvement in the shooting of Maclin. However, defendant later

confessed to his involvement in the crime.

¶ 13 Defendant was tried twice on these charges. At defendant's first trial, in June

2008, a jury convicted defendant of (1) first degree murder, (2) unlawful possession of a weapon

by a felon, and (3) aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). In

February 2010, this court reversed defendant's convictions and remanded for a new trial,

concluding that the trial court erred by allowing the State to read Grimes's testimony from his

own trial to the jury after Grimes refused to testify at defendant's trial. People v. Phillips, Nos.

4-08-0556, 4-09-0260 cons. (Feb. 1, 2010) (unpublished order under Supreme Court Rule 23).

¶ 14 In May 2012, on remand, the case proceeded to a bench trial at which Grimes

testified and defendant's testimony from his June 2008 trial was admitted into evidence. The

trial court found defendant guilty of first degree murder and unlawful possession of a weapon by

a felon. In July 2012, the court sentenced defendant as stated.

-4- ¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues that the State failed to prove him guilty of first degree murder

beyond a reasonable doubt because (1) Grimes's shooting of Maclin was an independent act not

done in furtherance of the original plan, (2) defendant had withdrawn from the original plan, and

(3) defendant did not share Grimes's intent.

¶ 18 A. Standard of Review

¶ 19 When reviewing a defendant's challenge to the sufficiency of the evidence, we

determine 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. People v. Beauchamp,

,

(2011). "This means that we

'must allow all reasonable inferences from the record in favor of the prosecution.' "

,

(quoting People v. Cunningham,

,

(2004)). "We will not reverse a conviction unless the evidence is so improbable, unsatisfactory,

or inconclusive that it creates a reasonable doubt of defendant's guilt." People v. Collins,

,

(2005).

¶ 20 B. Legal Accountability and the Common-Design Rule

¶ 21 Section 5-2(c) of the Criminal Code of 1961 (720 ILCS 5/5-2(c) (West 2006))

provides, in pertinent part, as follows:

"A person is legally accountable for the conduct of another when:

***

(c) Either before or during the

-5- 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."

¶ 22 In the recent case of People v. Fernandez,

,

,

the supreme court reaffirmed "that the underlying intent of [section 5-2(c) of the Code] is to

incorporate the principle of the common-design rule." The court explained that "[u]nder the

common-design rule, if 'two 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 design or agreement and all are equally responsible for the

consequences of the further acts.' "

(quoting In re W.C.,

,

(1995)). " 'Evidence that a defendant voluntarily attached himself to a group bent

on illegal acts with knowledge of its design supports an inference that he shared the common

purpose and will sustain his conviction for an offense committed by another.' "

(quoting W.C.,

,

).

¶ 23 In Fernandez, the defendant agreed to drive his friend, Gonzalez, to a parking lot

so that Gonzalez could burglarize some cars. Id. ¶ 8,

. While the defendant waited

in the SUV he was driving, an off-duty police officer noticed Gonzalez breaking into a parked

car. Id. ¶ 3,

. The officer displayed his badge and identified himself.

Gonzalez

began walking backward toward the SUV, while the defendant slowly drove forward to

Gonzalez.

Gonzalez then opened the passenger-side door, jumped onto the running board,

-6- drew a gun, and fired three shots toward the officer.

¶ 24 The Fernandez court affirmed the defendant's conviction for aggravated discharge

of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). Id. ¶ 23,

. In so doing, the court explicitly rejected the defendant's argument that his

conviction must be reversed because "the State failed to produce any evidence showing that

defendant even knew Gonzalez had a gun, let alone that he knew that Gonzalez would discharge

that gun in the direction of a police officer." Id. ¶ 12,

. The Fernandez court noted

that this argument was "utterly precluded" by the court's earlier decision in People v. Kessler,

,

(1974). Fernandez,

, ¶ 19,

.

¶ 25 In Kessler—which involved a "textbook application of the common-design rule"

(id. ¶ 14,

)—the defendant and two other men planned to burglarize a tavern after

hours. Kessler,

,

. The defendant waited in the passenger seat

of a car outside the tavern while his two unarmed companions went inside.

,

. Inside, the two men were surprised by the tavern owner.

,

. Using a gun found during the burglary, one of the men shot the tavern owner.

The two

men returned to the car that the defendant was waiting in, and the three men sped away.

An

ensuing police chase ended when the car was forced off the road. The defendant stayed in the

car while the two other men fled on foot.

During the foot chase, one of the men shot at a

pursuing police officer.

The defendant was found guilty by accountability of burglary and

attempted murder of both the tavern owner and the police officer.

,

.

¶ 26 The Kessler court affirmed the defendant's convictions under the common-design

-7- rule, concluding that "[section 5-2(c) of the Code], as it reads, means that where one aids another

in the planning or commission of an offense, he is legally accountable for the conduct of the

person he aids; and that the word 'conduct' encompasses any criminal act done in furtherance of

the planned and intended act."

,

. The Fernandez court summarized

the Kessler court's reasoning: "[O]nce [the defendant in Kessler] agreed to participate in

burglary, he was liable under section 5-2(c) for every criminal act committed 'in connection

therewith,' including the unplanned shootings committed by his initially unarmed companions."

Fernandez,

,

.

¶ 27 In Fernandez, the court concluded that the State was "exactly right" in arguing

that the defendant, " 'by conceding his guilt for the burglary, *** has effectively conceded his

guilt for aggravated discharge of a firearm.' " Id. ¶ 18,

. Citing Kessler, the court

reasoned that defendant's concession that he aided Gonzalez in the planning and commission of

the burglary meant that he was also liable for Gonzalez shooting at the officer—a criminal act

committed in furtherance of the burglary. "In other words, there is no question that one can be

held accountable for a crime other than the one that was planned or intended, provided it was

committed in furtherance of the crime that was planned or intended." (Emphasis in original.) Id.

¶ 19,

.

¶ 28 C. The State Proved Defendant Guilty Beyond a Reasonable Doubt

¶ 29 Applying the common-design rule to the facts of this case, we conclude that the

State proved defendant guilty of first degree murder beyond a reasonable doubt.

¶ 30 1. Common Criminal Design

¶ 31 Defendant and Grimes both went to the area of Marietta and Vandyke Streets

-8- intending to commit a crime. Specifically, defendant would attack Frazier, and Grimes would be

his backup.

¶ 32 The facts of People v. Tarver,

,

(1942), are similar to

the facts of this case. Tarver involved two feuding groups of young people: the Tarver group

and the Walker group.

,

. After a member of the Tarver group, Glenn,

got into a fight with a member of the Walker group, Smiley, eight members of the Tarver group

agreed to ride together in a truck to confront the Walker group on a street corner.

,

. Mack, a member of the Tarver group, agreed to come along if he was promised

there would be no shooting.

,

. Despite this supposed limitation,

Mack and another member of the Tarver group brought guns.

When the two groups

confronted each other on the street corner, Tarver took Mack's gun and fatally shot Walker.

,

. Mack and several other members of the Tarver group were convicted

of murder on a theory of accountability.

,

.

¶ 33 The supreme court affirmed the convictions, explaining as follows:

"The evidence abundantly supports the conclusion that the

Tarver [group] were banded together for the purpose of avenging

the beating that Rotell Glenn had previously received. Frequent

reference is made in defendants' brief to the 'peace mission' in

which the defendants were engaged[,] and it is argued they came to

the neighborhood where the Walker group resided for the purpose

of establishing peace between the two groups. The preparation

made in equipping themselves with a revolver and a sawed-off

-9- rifle, both of which were loaded, exposes the fallacy of the 'peace

mission' argument. Perhaps they had no definite intention to use

the guns or to kill Lacey Walker or any other person, yet the

evidence shows that they went into the neighborhood where the

Walker group resided anticipating a fight. It is evident there was

ill feeling between the two groups, engendered in part at least by

the Smiley-Rotell Glenn affair. It is conceded that for several

hours preceding the trip to the Walker neighborhood, the

defendants discussed the Smiley-Glenn fight among themselves

and the evidence supports the conclusion that they armed

themselves before going to the other neighborhood for the purpose

of securing a measure of retaliation against the other group. The

defendants, whose case is before this court, constituted themselves

members of a gang assembled for the purpose of disturbing the

peace and doing unlawful acts.

*** A shot fired by one of the defendants, under the

circumstances shown, was a shot fired by all and all of them must

answer for the result."

,

.

¶ 34 In this case, as in Tarver, defendant cannot escape liability merely because his

criminal intentions did not rise to the level of murder. By attaching himself to a group bent on

illegal acts, defendant became accountable for all the crimes of his companions, including the

shooting of Maclin.

- 10 - ¶ 35 2. Withdrawal

¶ 36 Defendant further argues that he was not guilty under the common-design rule

because he had withdrawn from the original plan. We disagree.

¶ 37 Section 5-2(c)(3) of the Code provides that a person is not legally accountable for

the conduct of another if, "[b]efore the commission of the offense, he terminates his effort to

promote or facilitate such commission, and does one of the following: wholly deprives his prior

efforts of effectiveness in such commission, or gives timely warning to the proper law

enforcement authorities, or otherwise makes proper effort to prevent the commission of the

offense." 720 ILCS 5/5-2(c)(3) (West 2006). The supreme court has elaborated on the concept

of withdrawal, as follows:

"[T]he withdrawal must be timely, that is to say it must be such as

to give his co-conspirators a reasonable opportunity, if they desire,

to follow his example and refrain from further action before the act

is committed, and it must be possible for the trier of fact to say that

the accused had wholly and effectively detached himself from the

criminal enterprise before the act with which he is charged is in the

process of consummation or has become so inevitable that it

cannot reasonably be stayed." (Internal quotation marks omitted.)

People v. Brown,

,

(1962).

¶ 38 In support of his argument that he withdrew from the plan, defendant cites his

trial testimony:

- 11 - "[DEFENDANT]: Grimes proceeded in front of the house

after about five minutes of sitting back there and he told me to

wait. I was fitting to leave when we got ready—when the car

lights pulled off I told him I was fitting to leave. He told me for

[sic] wait for minute and he went around the corner and that's

when I heard a shot."

Grimes testified that defendant said, "we might as well not even go up there because we might

end up getting jumped real bad." (We note that the trial court, in announcing its verdict, stated

that it found Grimes's testimony "unreliable.") According to Grimes, defendant then started

walking back to the car, but he complied with Grimes's request that he wait.

¶ 39 This evidence falls woefully short of demonstrating that defendant withdrew from

the criminal plan. Defendant's walking back to the car hardly served to detach himself from the

criminal enterprise, and even that minimal step was negated when he complied with Grimes's

request that he stay.

¶ 40 In People v. Perez,

,

(2000), the court

held that "[p]roof that the defendant was present during the perpetration of the offense, that he

fled from the scene, that he maintained a close affiliation with his companions after the

commission of the crime, and that he failed to report the crime are all factors that the trier of fact

may consider in determining the defendant's legal accountability." Each of those factors applies

in this case to demonstrate that defendant did not withdraw from the plan. Even if defendant had

partially and momentarily backed out of the criminal effort, he fully recommitted after Grimes

asked him to stay. Defendant then fled the scene with Grimes, failed to report the crime,

- 12 - coordinated with Grimes to mislead investigators, and even took it upon himself to dispose of the

murder weapon. Defendant by no means "wholly and effectively detached himself from the

criminal enterprise." (Internal quotation marks omitted.) Brown,

,

. Given defendant's actions before and after the murder, a rational trier of fact could have

easily concluded that defendant did not withdraw from the common criminal design so as to

negate his legal accountability.

¶ 41 3. The Claimed "Shared Intent" Requirement of the Common-Design Rule

¶ 42 We also reject defendant's argument that he was not proved guilty because he did

not share Grimes's intent. Specifically, defendant contends that the State needed to prove that he

intended for Grimes to fire the rifle, and because defendant had no such intent, he was not

proved guilty of first degree murder. We strongly disagree.

¶ 43 Under the common-design rule, the State need not prove that the defendant and

the principal shared the same intent vis-à-vis the charged crime. Instead, as this court has held,

"the State need only prove the accused had the specific intent to promote or facilitate a crime.

Once the State proves the accused intended to promote or facilitate a crime, it has established the

accused's responsibility for any criminal act done in furtherance of the intended crime."

(Emphases in original.) People v. Houston,

,

(1994).

¶ 44 In Fernandez, the defendant claimed that he could not be found guilty by

accountability because he did not even know that Gonzalez had a gun, much less that he would

use it to shoot at a police officer. Fernandez,

,

. In rejecting

that argument, the court stated "there is no question that one can be held accountable for a crime

- 13 - other than the one that was planned or intended, provided it was committed in furtherance of the

crime that was planned or intended." (Emphasis in original.) Id. ¶ 19,

. In this

case, even though defendant knew Grimes had a loaded rifle, such knowledge was not necessary

to establish defendant's guilt for first degree murder. Even if Grimes had hidden the rifle from

defendant, or found the rifle on the ground after he stepped outside defendant's view, defendant

would still be guilty of first degree murder. By setting out to commit a crime with Grimes,

defendant rendered himself legally accountable for Grimes's shooting of Maclin.

¶ 45 Like the felony-murder doctrine, under which a defendant may be liable for first

degree murder even when his cofelon is killed by a police officer (People v. Hudson,

,

(2006)) or when a resisting victim accidentally kills an innocent bystander

(People v. Lowery,

,

(1997)), 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." People v. Dennis,

,

(1998).

¶ 46 Defendant's argument that the State was required to prove that he shared Grimes'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

- 14 - there was a common criminal design." (Emphases in original.) Fernandez,

,

. In other words, accountability cases fall into two distinct categories: (1)

shared-intent cases and (2) common-design cases.

¶ 47 In two shared-intent cases discussed by the Fernandez court—Dennis,

,

, and People v. Taylor,

,

(1999)—"the

defendant was the driver of a car whose passenger, wholly unbeknownst to the defendant,

intended to commit a crime." (Emphasis in original.) Fernandez,

,

. The Fernandez court cited Dennis and Taylor to explain the distinction between the

shared-intent analysis and the common-design analysis:

"In both [Dennis and Taylor], the evidence clearly showed that the

defendants had no idea that any crime was going to be committed,

let alone the one that actually was committed. [Citations.] Thus,

in these two cases, the court appropriately focused upon what these

defendants knew about their passengers' criminal intentions, as one

cannot share an intent to promote or facilitate the commission of a

crime when one doesn't even know that a crime is going to be

committed. However, this emphatically is not the rule in common-

design[-]rule cases, where by definition the defendant intentionally

sets out to promote or facilitate the commission of a crime. In

common-design[-]rule cases, the rule is and remains that of

Kessler, namely, that 'where one aids another in the planning or

commission of an offense, he is legally accountable for the conduct

- 15 - of the person he aids; and that the word "conduct" encompasses

any criminal act done in furtherance of the planned and intended

act.' " (Emphases in original.) Id. ¶ 21,

(quoting

Kessler,

,

).

¶ 48 In keeping with this holding, the Fernandez court explicitly overruled the First

District's decision in People v. Phillips,

,

, which

essentially held that in all accountability cases, a defendant is legally accountable only for crimes

that he specifically intends to help his cohort commit. Phillips,

,

, overruled by Fernandez,

,

. The First

District's holding in Phillips mirrors the argument defendant makes in the case before us, and

that holding essentially constituted an attempt to resurrect the rule rejected by the supreme court

in Kessler. The unanimous supreme court in Fernandez flatly rejected the Phillips court's

interpretation of the accountability statute and made clear that shared intent is not an element of

the common-design rule. Instead, shared intent and common design are two separate bases upon

which the State can prove legal accountability. Fernandez,

,

.

¶ 49 The First District's December 2013 decisions in People v. Johnson,

,

, and People v. Williams,

,

,

both of which cited Phillips approvingly and reversed first degree murder convictions, are also

premised upon an erroneous interpretation of the accountability statute. As the First District's

multiple recent decisions demonstrate, the "shared intent" requirement of the common-design

rule seems to be the Rasputin of unsound legal rules. It just won't die.

¶ 50 Over 150 years ago, in Brennan v. People,

(1854), the supreme

- 16 - court dealt what should have been a lethal blow to the shared-intent rule, holding that "[i]f

several persons conspire to do an unlawful act, and death happens in the prosecution of the

common object, all are alike guilty of the homicide. The act of one of them done in furtherance

of the original design[] is, in consideration of law, the act of all."

¶ 51 In the 1885 case of Hamilton v. People,

(1885)—cited in Kessler—

the defendant was convicted of assault with intent to commit murder on a theory of

accountability stemming from a botched watermelon heist. After a farmer and his son

discovered three would-be watermelon thieves in their watermelon patch, the farmer tussled with

one of the thieves on the ground. Another of the thieves used a pistol to shoot at the farmer, but

he missed and shot his companion. The third thief struck the farmer with a hoe, knocking him

unconscious.

.

¶ 52 On these facts, all three watermelon thieves were convicted of assault with intent

to commit murder. The supreme court stated, as follows:

"The business upon which the parties had deliberately entered was

a hazardous one. They had a right to expect that in the event they

were detected in stealing the melons, it would result in violence

endangering life or limb, *** as it actually turned out afterwards.

That they were all co-conspirators in a dangerous criminal

enterprise, is an undisputed fact. Such being the case, whatever

was done by one, in contemplation of law was done by all, and all

are therefore equally responsible."

.

¶ 53 In the almost 130 years since Hamilton, the supreme court has repeatedly rejected

- 17 - shared intent as an element of the common-design rule. See, e.g., People v. Rudecki,

,

(1923); Tarver,

,

; People v. Rybka,

,

(1959); People v. Torres,

,

(1960); People v. Washington,

,

(1962); People

v. Cole,

,

(1964); People v. Armstrong,

,

(1968); People v. Hubbard,

,

(1973); Kessler,

,

; People v. Terry,

,

(1984); W.C.,

,

; Perez,

,

; People v. Cooper,

,

(2000).

¶ 54 The shared-intent requirement of the common-design rule is as resilient as it is

unsound. Its ability to maintain a foothold in Illinois jurisprudence despite 160 years of rejection

by the supreme court reminds us of the defunct evidentiary doctrine of res gestae. Justice

Greiman drew the appropriate analogy:

"Like an entombed vampire, every now and again 'Count

Res Gestae' moves the cover of his coffin and begins to circulate in

the world of litigators and judges ***. ***

***

I would hope that this concurring opinion can be the

equivalent of a stake in the heart of res gestae and that the coffin

lid may be securely fastened." People v. Rogers,

,

(1992) (Greiman, P.J., specially

concurring).

- 18 - Like res gestae, the shared-intent requirement of the common-design rule has shown an uncanny

ability to come back from the dead. Even though the past 160 years of supreme court precedent

have failed to decisively kill the bogus shared-intent requirement of the common-design rule, we

are hopeful that Fernandez has finally finished the job. We hope that this opinion will serve as

an additional nail in the coffin.

¶ 55 III. CONCLUSION

¶ 56 For the reasons stated, we affirm defendant's convictions. As part of our

judgment, we award the State its $50 statutory assessment as costs of this appeal.

¶ 57 Affirmed.

- 19 -