SECOND DIVISION September 30, 2016

No. 1-13-3459

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 3807 ) HALIK WILLIAMS, ) Honorable ) Matthew E. Coghlan, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Mason concurred in the judgment and opinion. Presiding Justice Hyman specially concurred, with opinion.

OPINION

¶1 Halik Williams, the defendant, appeals from the circuit court's dismissal, upon the State's

motion, of his petition and supplemental petition for relief pursuant to the Post-Conviction

Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant

contends that the court erred in dismissing the petitions because they made a substantial

showing that he was denied effective assistance of trial and appellate counsel. He also

contends that the court erred because the petitions made a substantial showing of actual 1-13-3459

innocence based upon new evidence that establishes that no one that defendant was

accountable for caused the victim's death, and, therefore, the victim's death was not first

degree murder. We affirm.

¶2 Following simultaneous, but severed, bench trials with codefendants Warren Hardy and

David Sapp, defendant was found guilty of first degree murder based upon a theory of

accountability. Defendant was sentenced to 30 years in prison.

¶3 The evidence at defendant's trial established that the victim, Anthony King, died from

electrocution on the "third rail" of Chicago Transit Authority train tracks on September 5,

1999. The victim's death arose out of confrontation at the Morse Station platform between a

group of Gangster Disciples consisting of defendant, codefendants and Jason Moody, and a

group of current and former Vice Lords consisting of the victim, Jonathan Lejman, Dennis

Myles, and Dwayne Johnson.

¶4 At trial, Jason Moody testified that he was walking when he heard a "woo, woo" so he

looked up and saw codefendant Sapp on the "el" platform "waving" him up. As Moody

continued walking, he saw Lawrence Brooks sitting in a parked car and codefendant Hardy

on the street. Codefendant Hardy said that some "Hooks" were on the platform. Moody

explained that "Hooks" was a "disrespectful term" for members of the Vice Lords gang.

Moody was a member of the Gangster Disciples and the Morse "el" stop was part of the

gang's "territory."

¶5 Once on the platform, Moody saw the victim and codefendant Hardy fighting on the train

tracks. Codefendant Hardy was punching the victim and the victim was trying to push

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codefendant Hardy away. At one point, Moody "heard sparks." The victim was on the "third

rail" and codefendant Hardy was on the platform. Moody then saw defendant hit the victim

on the head with a cane five times. After the fifth blow, the cane broke.

¶6 Jonathan Lejman testified that he was a former member of the Vice Lords and grew up

with the victim. On the night of the victim's death, he, the victim, Myles and Johnson were

celebrating both the victim's release from prison and the victim's birthday. Although the

group exited the train at the Morse stop, they "had no business over there" because it was

Gangster Disciple territory, so they went back up to the platform. Lejman, Myles and the

victim sat on a bench. Johnson went to the other entrance to the platform.

¶7 Defendant, who was holding a cane, and codefendant Sapp then approached. Defendant

asked if Lejman was "White C." Lejman stood up and replied that White C was dead. He

stated that his group was not "on any gang banging or none of that," that is, they were not

looking for trouble. Codefendant Sapp replied "we're hook killers." Lejman understood this

to mean that codefendant Sapp's group belonged to the Vice Lords. As Lejman continued to

say that his group was just trying to get home, he moved closer to defendant, who was "being

fidgety" so that defendant would not be able to swing the cane at him. As Lejman moved

closer, defendant said "man didn't I tell your bitch ass to back up off me." Lejman backed up.

Shortly thereafter, defendant swung the cane at Lejman. Lejman, the victim and Myles all ran

to the end of the platform. Lejman jumped on the tracks and kept running. He stopped when

he did not hear anyone behind him. When Lejman turned around, he saw defendant swinging

a cane at someone on the tracks. He ran back and discovered the victim on the tracks.

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¶8 Dennis Myles testified that although he was in a gang, he was not "gang banging" that

night. When defendant took a swing at Lejman with the cane, Lejman ran away. Myles and

the victim followed. When Myles saw Lejman jump onto the tracks and defendant "fixing to

go after him," Myles turned around. Although the victim initially turned around, the victim

then jumped onto the tracks. Myles followed the victim onto the tracks and ran past him.

Myles then heard "oh we got one," and turned around to see the victim "on the floor."

Defendant was on the tracks, and he hit the victim three times in the head with the cane.

During cross-examination, Myles acknowledged that he had made a statement to police

which indicated that the victim jumped off the platform. However, he testified that the person

who transcribed his statement "didn't hear [him] all the way right," and that the statement was

incorrect.

¶9 Detective Steve Schorsch testified that he and another detective spoke with defendant on

September 7, 1999, in an interview room at Area 3. He was also present when defendant later

spoke to an assistant State's Attorney. Defendant declined to make a written or videotaped

statement; rather, defendant agreed to say what had happened. Schorsch took notes as

defendant spoke. Defendant later reviewed these notes and agreed that they were accurate.

¶ 10 Defendant stated that he was driving with codefendant Sapp and Sapp's cousin Lawrence

Brooks when he looked up and saw "White C." He told Brooks to pull over. Defendant and

codefendant Sapp got out of the car. Defendant was holding a cane. Once up on the platform,

codefendant Sapp stated "they were Vice Lord Killers, Hook Killers." Codefendant Hardy

and Moody were also on the platform. Defendant asked one of the men if he was White C. At

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one point White C. and the two men with him began to run. Defendant chased White C. The

other two men ran toward codefendant Hardy. As defendant turned, he saw codefendant

Hardy grab one of the men. He watched as codefendant Hardy and this man fell onto the train

tracks. Codefendant Hardy pushed the other man onto the tracks and this man was

"electrified."

¶ 11 Assistant Chief Medical Examiner Mitra Kalelkar testified that she performed an autopsy

on the victim. She noted electrical burns on the victim's abdomen, hands, and left wrist.

There were also lacerations and cuts on the victim's head and face. After an internal and

external examination, she concluded that the victim died as the result of electrocution.

¶ 12 In finding defendant and codefendants guilty of first degree murder, the trial court relied

on the common design rule as stated in People v. Terry,

(1984). In

denying defendant's motion for a new trial which argued, in pertinent part, that the victim's

fall to the tracks was an accident after the completion of the underlying felony of assault or

battery, the trial court stated that when two or more persons join together to commit an

offense, even "a minor offense which involves violence," the parties are responsible for

"everything" that occurs as a result of the agreement. The court stated that the circumstances

of the case "all lead to the conclusion that these parties entered into an agreement to at least

commit an assault or misdemeanor battery on the victim in this case, which resulted in his

death." The court "agreed" that "perhaps" defendant and codefendants did not set out to

commit a murder, "but they are responsible for all of the consequences of that which they did

set out to do." The court then sentenced defendant to 30 years in prison.

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¶ 13 On appeal, defendant contended that the evidence was insufficient to prove beyond a

reasonable doubt that he was guilty of first degree murder pursuant to an accountability

theory. Defendant argued, inter alia, that he did not have the intent or knowledge required to

support a murder conviction.

¶ 14 In rejecting defendant's argument this court found that the evidence "clearly established"

that defendant was not only present during the crime, but that he "actively devised and

initiated the encounter" with the victim. See People v. Williams, No 1-03-0292 (2005), order

at 9-10 (unpublished order under Supreme Court Rule 23). This court noted that defendant

was the first to notice the Vice Lords on the platform, he directed Brooks to park, he

confronted the Vice Lords on the platform, and he struck the victim five times on the head

with a cane after the victim was electrocuted.

We therefore concluded that the trial court

did not err in finding that there was a common design to establish defendant's intent, and

properly held defendant accountable for the victim's death. Id. at 9.

¶ 15 In 2005, defendant filed a pro se petition for postconviction relief alleging, inter alia, that

he was denied the effective assistance of trial counsel by counsel's failure to impeach Jason

Moody with an affidavit in which Moody averred that he struck the victim on the head with a

cane, and to argue at trial that defendant was actually innocent because it was Moody, rather

than defendant, who struck the victim on the head with a cane. Attached to the petition in

support was defendant's unnotarized affidavit.

¶ 16 In his affidavit, defendant averred that Moody met with trial counsel's investigator

sometime in 2000. Defendant further averred that trial counsel told him that during this

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meeting Moody admitted that Moody was the person who struck the victim with a cane after

the victim was electrocuted. Defendant then averred that trial counsel "assured" him that

counsel would subpoena the investigator to testify at trial regarding this meeting, and that

counsel would submit Moody's affidavit as evidence at trial. However, trial counsel did not

submit the affidavit at trial. When defendant asked trial counsel why the affidavit was not

submitted at trial and why counsel did not cross-examine Moody about the affidavit, counsel

replied that he did not believe that the State had sufficient evidence to convict defendant and

he therefore did not think that he needed to present the testimony of the investigator at trial.

¶ 17 Defendant also averred that Moody came to visit him twice before trial. During the first

meeting, Moody stated that if defendant wanted him to "tell the truth" defendant had to pay

him $5,000 before trial and $5,000 after trial. During the second meeting, defendant told

Moody that he needed more time to get the money. Moody responded that defendant's "time

was up" and left. Defendant averred that although he told trial counsel and the jail's Office of

Internal Affairs about the first meeting, so that the second meeting could be recorded, he did

not receive a response from either the jail or trial counsel.

¶ 18 Defendant finally averred that he had tried unsuccessfully to obtain a copy of Moody's

affidavit and the name of the investigator from trial counsel. However, trial counsel refused

to disclose the name of the investigator, or to give defendant a copy of Moody's affidavit and

the discovery from the case because defendant had a balance due of $3,400.

¶ 19 The circuit court docketed the petition and appointed postconviction counsel. In August

2011, postconviction counsel field a certificate pursuant to Supreme Court 651(c) (eff. Dec.

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1, 1984), stating that counsel had reviewed defendant's pro se petition for postconviction

relief, certain police reports and other discovery material, the trial transcript and common law

record, and the order issued in defendant's direct appeal. The certificate further stated

postconviction counsel had communicated with defendant in person and over the phone and

had interviewed or investigated "a number of witnesses" in an effort to further substantiate

defendant's claims. The certificate finally stated that counsel was "unable to supplement or

amend" defendant's pro se petition. The State then filed a motion to dismiss.

¶ 20 In December 2011, private counsel filed an appearance on behalf of defendant. In light of

private counsel's statement to the court that a supplemental petition would be filed, the State

requested, and was granted, leave to withdraw its motion to dismiss.

¶ 21 In January 2013, counsel filed a supplemental postconviction petition. The supplemental

petition alleged that newly discovered evidence, the affidavit of codefendant Sapp,

established that defendant was not guilty of murder because the victim fell onto the tracks

accidently. The supplemental petition further alleged that defendant had made a substantial

showing that there was a reasonable probability that a new trier of fact would find defendant

not guilty of first degree murder, and would instead, "at most," find him guilty of involuntary

manslaughter. The supplemental petition finally alleged that trial counsel was ineffective

because he failed to argue that defendant was guilty of the lesser-included offense of

involuntary manslaughter. Attached to the supplemental petition in support was the affidavit

of codefendant Sapp.

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¶ 22 In his affidavit, codefendant Sapp averred that he told police that he, defendant and

codefendant Hardy went to the train platform in order to fight with rival gang members.

Defendant walked up to Lejman, who was standing with the victim, Myles and "Little

Wayne." Defendant was holding a cane and swung it to prevent Lejman "from getting in his

face." Lejman ran away and defendant chased him. The victim and Myles began to run after

defendant, but then turned around and ran the other way. At one point, Myles crossed in front

of the victim, jumped down onto the train tracks and ran away. This action seemed to "catch"

the victim off guard and the victim lost his balance and fell onto the tracks. Codefendant

Hardy then either fell or jumped down. Codefendant Sapp averred that although he told the

police that "the whole thing" was an accident, the police said that defendant and Moody had

already made statements. The police told him what to say so that he could "go home." The

State then filed a motion to dismiss. Attached to defendant's response to the State's motion

was a notarized copy of defendant's original affidavit. The circuit court subsequently granted

the State's motion.

¶ 23 On appeal, defendant contends that the circuit court erred when it granted the State's

motion to dismiss because he made a substantial showing of a constitutional deprivation.

Defendant first contends that he was denied the effective assistance of trial counsel because

trial counsel failed to impeach Moody with evidence that it was Moody, not defendant, who

struck the victim with a cane. Defendant further contends that he was denied the effective

assistance of appellate counsel because appellate counsel failed to challenge the sufficiency

of the evidence supporting defendant's conviction when the trial court found that neither

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defendant nor any codefendant had the "requisite mental state to commit first degree

murder." Defendant finally contends that he has made a substantial showing of actual

innocence based upon new evidence which established that no one that he was "accountable

for" caused the death of the victim and, therefore, the victim's death could not be first degree

murder.

¶ 24 The Act provides a procedural mechanism through which a defendant may assert a

substantial denial of his constitutional rights in the proceedings which resulted in his

conviction. 725 ILCS 5/122-1 (West 2004); People v. Davis,

, ¶ 13. If the

circuit court does not dismiss the postconviction petition as frivolous or patently without

merit, then the petition advances to the second stage where counsel is appointed to represent

the defendant, if requested (725 ILCS 5/122-4 (West 2004)), and the State is allowed to file

responsive pleadings (725 ILCS 5/122-5 (West 2004)).

¶ 25 At the second stage of proceedings under the Act, it is the defendant's burden to make a

"substantial showing of a constitutional violation." People v. Pendleton,

(2006). A "substantial showing" of a constitutional violation is a measure of the legal

sufficiency of a defendant's well-pled allegations of a constitutional violation which, if

proved at an evidentiary hearing, would entitle him to relief. People v. Domagala,

. Therefore, all well-pled facts in the petition that are not positively rebutted by

the trial record are taken to be true. Pendleton,

. If a defendant makes a

substantial showing that his constitutional rights were violated, the matter proceeds to a third

stage evidentiary hearing where the circuit court serves as a fact-finder and resolves

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evidentiary conflicts, weighs credibility, and determines the weight to be given testimony and

evidence. Domagala,

. We review the circuit court's dismissal of a

postconviction petition at the second stage of proceedings under the Act de novo. Pendleton,

.

¶ 26 Defendant first contends that his petitions made a substantial showing that he was denied

the effective assistance of trial and appellate counsel.

¶ 27 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the

two-pronged test set forth in Strickland v. Washington,

(1984). Specifically, "a

defendant must prove that defense counsel's performance fell below an objective standard of

reasonableness and that this substandard performance created a reasonable probability that,

but for counsel's errors, the result of the proceeding would have been different." People v.

Graham,

(2003). When challenging appellate counsel's performance, a

defendant must show both that appellate counsel's performance was deficient and that, but

for counsel's errors, there is a reasonable probability that the appeal would have been

successful. People v. English,

.

¶ 28 Because the failure to satisfy either prong of the Strickland test precludes a finding of

ineffective assistance of counsel (People v. Enis,

(2000)), a court "need

not determine whether counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies" (Strickland,

). Our supreme court has held that "Strickland requires actual prejudice be shown, not

mere speculation as to prejudice." People v. Bew,

(2008). Thus, at the

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second stage of the proceedings under the Act, defendant has the burden to make a

substantial showing that a reasonable probability exists that the outcome of the proceedings

would have been different had his counsel's performance been different. See People v.

Harris,

(2002) (affirming the trial court's dismissal of an ineffective

assistance of counsel claim without an evidentiary hearing where the defendant failed to

make a substantial showing of prejudice).

¶ 29 Here, defendant contends that he was denied the effective assistance of trial counsel

because counsel failed to impeach Moody with evidence that it was Moody, rather than

defendant, who struck the victim with a cane. Defendant acknowledges that the affidavit in

which Moody averred that it was he, rather than defendant, who struck the victim with a cane

was not attached to either the pro se postconviction petition or the supplemental petition.

Defendant also acknowledges that he did not attach affidavits from either Moody or trial

counsel regarding this affidavit, but argues that he cannot be expected to obtain affidavits in

which counsel admits ineffectiveness or Moody admits perjury. He also explains that because

he never knew the investigator's name, he could not obtain the investigator's affidavit. The

State responds that defendant's petitions were properly dismissed because his unsupported

allegations failed to make the requisite substantial showing of a constitutional violation.

¶ 30 Section 122-2 of the Act requires that a petition "shall have attached thereto affidavits,

records, or other evidence supporting its allegations or shall state why the same are not

attached." 725 ILCS 5/122-2 (West 2004). The purpose for requiring "affidavits, records, or

other evidence" is to establish that the allegations in a postconviction petition are capable of

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objective or independent corroboration. People v. Delton,

(2008). The

"affidavits and exhibits which accompany a petition must identify with reasonable certainty

the sources, character, and availability of the alleged evidence supporting the petition's

allegations."

¶ 31 In the case at bar, defendant's contention that trial counsel failed to impeach Moody with

an affidavit revealing that it was Moody rather than defendant who struck the victim with a

cane lacks any evidentiary support. Even accepting defendant's argument that he cannot be

expected to obtain an affidavit from trial counsel in which trial counsel admits

ineffectiveness (see People v. Hall,

(2005)), defendant has failed to

attach an affidavit or exhibit containing evidence supporting his allegation. Defendant did not

attach an affidavit from Moody or provide an affidavit from the investigator who obtained

the affidavit at issue. In the absence of such affidavits, this court cannot determine whether

the proposed witnesses could have provided testimony favorable to defendant, and further

review of this claim is unnecessary. See Enis,

(to sustain an ineffective

assistance of counsel claim for counsel's failure to investigate or present a witness, the

defendant's allegation must be supported by an affidavit from that witness that contains the

witness's proposed testimony). Therefore, we conclude that because defendant failed to

attach any witness affidavits to his petitions, his own affidavit notwithstanding, which

support this allegation, he has failed to make a substantial showing that he was denied the

effective assistance of trial counsel. See Domagala,

.

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¶ 32 Defendant next contends that he made a substantial showing that he was denied the

effective assistance of appellate counsel because appellate counsel failed to argue on direct

appeal that defendant could not be held accountable for the victim's murder because no one

that he was accountable for had the requisite mental state to commit first degree murder.

Defendant argues that in the absence of a principal who acted with the requisite mental state,

it was inappropriate for the trial court to apply the common design rule to find him guilty of

first degree murder under a theory of accountability.

¶ 33 To establish ineffective assistance of appellate counsel, a defendant must show both that

appellate counsel's performance was deficient and that, but for counsel's errors, there is a

reasonable probability that the appeal would have been successful. English,

. "Appellate counsel is not required to brief every conceivable issue on appeal, and

counsel is not incompetent for choosing not to raise meritless issues." People v. Maclin,

, ¶ 32. When the underlying issue has no merit, a defendant cannot show

how he was prejudiced by appellate counsel's failure to raise that issue on appeal. People v.

Lacy,

(2011).

¶ 34 Here, defendant argues that appellate counsel should have relied upon the trial court's

comment that neither defendant nor his companions had the requisite mental state to commit

murder to argue that the evidence at trial did not prove defendant guilty of murder beyond a

reasonable doubt. Thus, the question before this court is whether, had appellate counsel

argued that defendant was not proven guilty beyond a reasonable doubt of murder because no

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one defendant was accountable for had the requisite mental state to commit first degree

murder, this court would have reversed defendant's conviction.

¶ 35 Initially, we note that the State contends that this argument is barred by the doctrine of

res judicata when this court on direct appeal considered, and rejected, defendant's contention

that he was not proven guilty of first degree murder beyond a reasonable doubt because he

did not have the requisite mental state to commit first degree murder. See People v. Tate,

(issues raised and decided on direct appeal are barred by res judicata,

and issues that could have been raised but were not are forfeited).

¶ 36 However, in the instant appeal, defendant raises a different contention, whether his

lawyer was ineffective for failing to argue that no one for whom he was accountable had the

requisite mental state to commit first degree murder. A claim is not forfeited or otherwise

procedurally barred when a postconviction petition alleges ineffective assistance of appellate

counsel based upon a failure to raise that claim on direct appeal. See People v. Youngblood,

(2009) ("it is well established that a postconviction claim will

not be forfeited where the alleged forfeiture stems from the incompetence of appellate

counsel"); People v. Blair,

(2005) ("It has long been held that res

judicata and forfeiture do not apply where fundamental fairness so requires; where the

alleged forfeiture stems from the incompetence of appellate counsel; or where facts relating

to the claim do not appear on the face of the original appellate record."). In the case at bar,

because defendant contends that appellate counsel was ineffective for failing to challenge the

sufficiency of the evidence based upon codefendants' lack of the requisite mental state to

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commit first degree murder, this issue is not procedurally barred and we will therefore

address it.

¶ 37 When reviewing a challenge to the sufficiency of the evidence, the relevant question is

whether, after viewing the evidence in the light most favorable to the State, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

People v. Brown,

, ¶ 48. The trier of fact is responsible for evaluating the

credibility of the witnesses, weighing witness testimony, and determining what inferences to

draw from the evidence. People v. Ross,

(2008). This court reverses a

defendant's conviction only where the evidence is so unreasonable, improbable or

unsatisfactory that a reasonable doubt of his guilt remains. Brown,

, ¶ 48.

¶ 38 A person commits first degree murder when, in performing the acts which cause a

victim's death, he knows that such acts will create a strong probability of death or great

bodily harm to the victim. See 720 ILCS 5/9-1(a)(2) (West 1998). A person is legally

accountable for the conduct of another person when, either before or during the commission

of an offense, and with the intent to promote or facilitate such commission, he solicits, aids,

abets, or agrees or attempts to aid such other person in the planning or commission of the

offense. 720 ILCS 5/5-2(c) (West 1998). A defendant may be deemed accountable for acts

performed by another pursuant to a common criminal plan or purpose. People v. Taylor,

(1995).

¶ 39 The "common design" rule provides that when two or more people engage in a common

criminal design or agreement, any acts in the furtherance of that design or agreement

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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 those further acts. In re W.C.,

(1995). Proof of the common design need not be supported by words of

agreement but may be drawn from the circumstances surrounding the commission of the act.

Taylor,

.

¶ 40 Here, viewing the evidence at trial in the light most favorable to the State, as we must

(Brown,

), there was sufficient evidence to find defendant guilty,

beyond a reasonable doubt, of first degree murder under an accountability theory. The

evidence at trial established, through the testimony of Moody, Lejman, and Myles, as well as

Schorsch's testimony regarding defendant's statement, that when defendant noticed a group

of rival gang members on the platform he told Brooks to stop the car and then went to the

platform to confront them. Once on the platform, and after Sapp announced they were “hook

killers,” defendant approached Lejman and swung a cane at Lejman. In the ensuing chaos,

codefendant Hardy grabbed the victim and both men fell onto the train tracks. Specifically,

Moody testified that codefendant Hardy and the victim fought on the train tracks and

defendant stated that codefendant Hardy pushed the victim onto the tracks causing the victim

to be "electrified."

¶ 41 Defendant relies on the trial court's statements that it did not believe that defendant and

codefendants intended to kill anyone, and he concludes that the facts, as found by the trial

court, did not establish the necessary elements of first degree murder. We disagree.

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¶ 42 People v. Philips,

, is instructive. In that case, the defendant

intended to hit a woman named Frazier in the eye in retaliation for injuries she inflicted on

the mother of his children. The defendant went to Frazier's home accompanied by his friend,

Shaunessy Grimes. Grimes was to identify Frazier for the defendant because the defendant

did not know her. Grimes brought a rifle along in order to protect the defendant while the

defendant attacked Frazier. When the men arrived at Frazier's house, however, they saw a

crowd of people. The defendant changed his mind about attacking Frazier and planned to

leave because he was afraid he would be attacked by the crowd. Grimes then fired the rifle

once. A member of the crowd was killed. The defendant later admitted his involvement in the

shooting and was convicted of first degree murder and unlawful possession of a weapon by a

felon pursuant to an accountability theory.

¶ 43 On appeal, the court affirmed the defendant's murder conviction, finding that he could not

escape liability for the murder merely because his original intention was only to attack

Frazier. Id. ¶¶ 31, 34. The court concluded that "[b]y attaching himself to a group bent on

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

shooting." Id. ¶ 34. The court also noted that to be accountable for the shooting under the

common design rule, the defendant need not have shared Grimes's intent to fire the rifle;

rather, "[b]y setting out to commit a crime with Grimes, defendant rendered himself legally

accountable for [the] shooting." Id. ¶ ¶ 44, 53.

¶ 44 The Philips court also cited People v. Tarver,

(1942), which involved two

groups of young men, the Tarver group and the Walker group. After a member of the Tarver

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

group agreed to confront the Walker group. Mack, a member of the Tarver group, agreed to

go only if he was assured there would be no shooting. However, Mack took a revolver along.

During the subsequent confrontation, Tarver took Mack's gun and fatally shot Lacey Walker.

Mack was later convicted of murder under an accountability theory. In affirming Mack's

conviction, our supreme court found that there was abundant evidence that the Tarver group

"banded together" for the purpose of avenging the prior beating.

. The court also

noted that it was clear there was "ill feeling" between the two groups and that Mack was a

member "of a gang assembled for the purpose of disturbing the peace and doing unlawful

acts."

at 415-16 Therefore, "[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."

.

¶ 45 Similarly here, it is clear that defendant and codefendants went to the train platform to

confront rival gang members. Although it may be true that they did not intend to kill anyone

at that time, ultimately, the result of the confrontation was codefendant Hardy and the victim

fighting on the train tracks, which culminated in the victim being electrocuted. See Terry,

(our supreme court acknowledged that the common design rule "does

impose liability for murder even though a misdemeanor was originally intended").

¶ 46 Contrary to defendant's assertion, the State was not required to prove that defendant and

codefendants shared the same intent with regard to the charged offense (i.e., first degree

murder). Rather, the State needed only to prove that defendant had the intent to promote or

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facilitate a crime. See Philips,

. Under the common design

rule because the defendant and his codefendants were engaged 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 responsible for the consequences of those further acts.

720 ILCS 5/5-2 (c) (2010). By attaching himself to a group "bent" on an illegal action,

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

codefendant Hardy; defendant cannot "escape liability merely because his criminal intentions

did not rise to the level of murder." See Philips,

.

¶ 47 As our supreme court has held, "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.) See People v.

Fernandez,

.

¶ 48 In this case, this court cannot say that no rational trier of fact could have found defendant

guilty of first degree murder pursuant to the common design rule when the evidence at trial

established that defendant and codefendants were on the train platform (at defendant’s behest

according to his statement to the police) to confront the victim, that, Hardy, one of the

defendant’s companions, pushed the victim on the train tracks, and that Hardy’s act created a

strong probability of death or great bodily harm to the victim. Terry,

.

¶ 49 This court reverses a defendant's conviction only where the evidence is so unreasonable

or unsatisfactory that a reasonable doubt of his guilt remains (Brown,

);

this is not one of those cases.

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¶ 50 Defendant cannot show that he was prejudiced by appellate counsel's failure to raise this

meritless issue on direct appeal. See Lacy,

(if the underlying issue has

no merit, defendant cannot show how he was prejudiced appellate counsel's failure to raise it

on direct appeal). Therefore defendant’s petition failed to make a "substantial showing of a

constitutional violation." See Domagala,

.

¶ 51 Defendant finally contends that he has made a substantial showing of actual innocence

because codefendant Sapp's affidavit establishes that the victim fell onto the tracks after

being startled by Myles and, therefore, no one for whom defendant was accountable was

responsible for the victim's death.

¶ 52 To "succeed on a claim of actual innocence, the defendant must present new, material,

noncumulative evidence that is so conclusive it would probably change the result on retrial."

People v. Coleman,

. "New means the evidence was discovered after

trial and could not have been discovered earlier through the exercise of due diligence."

Material means the evidence is "relevant and probative" of the defendant's innocence and

noncumulative means the evidence adds to what the factfinder heard at trial.

A reviewing

court "must be able to find that petitioner's new evidence is so conclusive that it is more

likely than not that no reasonable juror would find him guilty beyond a reasonable doubt."

People v. Sanders,

. Well-pleaded factual allegations in the

postconviction petition and its supporting evidence are taken as true unless they are

positively rebutted by the record. Id. ¶ 48.

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¶ 53 Defendant argues that codefendant Sapp's affidavit is newly discovered evidence because

codefendant Sapp was simultaneously prosecuted for the victim's death, so defendant had no

way to obtain his testimony at trial and that it is noncumulative in that it presents "a narrative

of events that was not heard before." He further argues that taken as true Sapp's affidavit

exonerates him because the "act" which caused the victim's death was committed by Myles

rather than defendant or codefendants.

¶ 54 Initially, we note that codefendant Sapp's account of events is largely consistent with the

sequence of events that was outlined at trial. Specifically, defendant and codefendants went

to the platform to confront members of a rival gang; defendant engaged in a conversation

with Lejman; defendant swung a cane at Lejman; and Lejman, Myles and the victim ran

away. It is only in the manner in which the victim ended up on the tracks that is "new," as

codefendant Sapp avers that the victim was startled by Myles, lost his balance and fell onto

the tracks. Even if we accept defendant's conclusion that the facts contained in codefendant's

Sapp's affidavit are new and noncumulative because he did not testify at defendant's trial, we

cannot agree that codefendant Sapp's affidavit, taken as true, is of such a conclusive character

that it would probably change the result at retrial. See People v. Washington,

(1996) (the most important element of a claim of actual innocence is whether the

evidence is of such conclusive character that it would probably change the result on retrial).

¶ 55 We find People v. Edwards,

, to be instructive. There, the defendant

claimed actual innocence, in part, based on newly discovered evidence in the form of an

affidavit from a codefendant, Eddie Coleman. The Edwards court found the codefendant's

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affidavit to be newly discovered evidence, due to the fact no amount of diligence could have

forced the codefendant to violate his fifth amendment right to avoid self-incrimination if he

chose not to do so. Id. ¶ 38. The Edwards court noted that the codefendant averred that the

defendant " 'had nothing to do with this shooting' * * * [and] was neither 'a part [of nor] took

part in this crime.' " Id. ¶ 39. The Edwards court also noted that the codefendant "critically

does not assert that petitioner was not present when the shooting took place." (Emphasis in

original.) Id. The court then determined that the codefendant's affidavit did not raise the

probability that, in light of the new evidence, it was more likely than not that no reasonable

juror would have convicted the defendant. Id. ¶ 40. Finally, the Edwards court agreed with

the appellate court's conclusion that the codefendant's averment, that he was the principal

offender, did not exonerate the defendant, who had been convicted of murder under an

accountability theory. Id.

¶ 56 Here, we find that codefendant Sapp's affidavit does not remove defendant from the train

platform or the events leading up to the victim's death; rather, it offers an alternative

explanation for how the victim ended up on the tracks. The evidence at trial established that

the victim fell to the tracks as the result of a struggle with codefendant Hardy, whereas

codefendant Sapp avers that the victim lost his balance after being startled by Myles.

¶ 57 Although codefendant Sapp avers that the victim lost his balance and fell onto the tracks,

the fact remains that Moody testified at trial that he saw codefendant Hardy and the victim

fighting immediately prior to the victim being on the tracks, and defendant stated that

codefendant Hardy and the victim fell onto the tracks together. Accordingly, we cannot

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conclude that the information contained in codefendant Sapp's affidavit "is so conclusive that

it is more likely than not that no reasonable juror would find [defendant] guilty beyond a

reasonable doubt." Sanders,

. Rather, we find that at best the evidence

contained in the affidavit merely affects the issue of the sufficiency of the evidence and

therefore does not totally vindicate defendant. See People v. Adams,

(evidence of a defendant's actual innocence must support his total vindication

or exoneration, not merely present a reasonable doubt as to his guilt). Therefore, defendant

has failed to make a substantial showing of actual innocence. See Domagala,

.

¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 59 Affirmed.

¶ 60 JUSTICE HYMAN, specially concurring.

¶ 61 I agree with my colleagues that the trial court properly dismissed Williams’s petition for

postconviction relief. I write separately to elaborate on the evidence needed to prove

accountability for first degree murder. The State must show not only that Williams

possessed the necessary mental state to be accountable for the actions of his codefendants,

but also that at least one person in the group possessed the necessary mental state for first

degree murder. Williams argues that the State did not do so and so the evidence was

insufficient. To the contrary, the State presented the necessary evidence and accordingly, I

agree that his claim fails.

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¶ 62 Accountability, in itself, is not a crime. People v. Shaw,

(1999).

Rather, it is a method of proving culpability for an underlying crime. People v. Hicks,

(1998). The defendant is held accountable for the actions of the “principal”

who commits the underlying crime.

¶ 63 Here, the underlying crime is first degree murder, and the State needed to present

sufficient evidence of all its elements —including evidence of intent (knowing that the

actions had a strong probability of causing death or great bodily harm to the victim). See

People v. McIntyre,

(to find defendant guilty under

accountability theory, State must first establish prima facie case against principal). If the

State does not establish the elements of the underlying crime as committed by the principal,

then a defendant cannot be held accountable for aiding, abetting, or attempting to aid the

principal in planning or committing the offense. See People v. Chirchirillo,

(2009) (defendant cannot be accountable for unlawful possession of weapon by

felon where State failed to establish that principal was felon); see also People v. Gibson,

(2010) (same), abrogated on other grounds by People v. Bailey,

.

¶ 64 The State’s choice to charge Williams on an accountability theory does not excuse the

State from proving the elements of first degree murder. See People v. Jaimes,

(to obtain conviction based on accountability, State must prove that

principal actually committed offense). That element of intent for first degree murder is

wholly separate and apart from the mens rea encompassed in the accountability statute,

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which requires that the accountable person have the intent to promote or facilitate the

commission of the underlying crime. 720 ILCS 5/5-2(c) (West 1998).

¶ 65 In practice, we rarely need to unwind these two levels of intent.

¶ 66 Accountability cases generally fall into two groups. The first group is the “leader-

follower” scenario, where the “leader” commits the murder but the “follower” is accountable.

See, e.g., People v. Phillips,

(where Phillips and friend

Grimes had common design to punch victim, Phillips was accountable for Grimes’s actions

in shooting another person when assault plan went awry). For example, defendants A and B

agree to rob the victim. Defendant A shoots the victim but defendant B does not physically

harm the victim at all. Defendant A has the requisite mens rea for first degree murder

(knowing that shooting the victim has a strong probability of causing death or great bodily

harm). Defendant A is the “principal.”

¶ 67 Defendant B does not have that mens rea for first degree murder, but under the

accountability statute, Defendant B can still be liable because he or she had a common design

with A to commit the robbery. There is no question of who shot the victim, and no question

that both the mens rea for first degree murder and the mens rea for accountability were

present within this group of defendants. See People v. Mischke,

(1995) (where codefendants involved in common design to commit aggravated assault or

battery against victims, codefendants “did not have to actively participate in [victim]’s

murder in order to be guilty under the accountability theory”).

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¶ 68 The second common group of accountability cases is the “mystery shooter” scenario,

when the chaos of the situation makes it impossible to tell who struck the fatal blow against

the victim. See, e.g., People v. Cooper,

(2000) (codefendant gang

members were both guilty of first degree murder by accountability, though it was unclear

which codefendant actually shot at victims during confrontation with rival gang).

Defendants C and D agree to rob the victim, but during the crime a gunshot rings out,

striking and killing the victim. In the aftermath, no physical evidence indicates whether it

was C or D who pulled the trigger, and neither will turn against the other. But we can infer

that at least one of those defendants had the mens rea for first degree murder (because the

victim was shot), and we need not identify the “principal” to hold both accountable for the

murder (because both had a common design). See

(2000) (defendants may be

found guilty under accountability theory even if identity of principal is unknown, if each had

common design).

¶ 69 Williams’s case, as he presents it, is more unusual. He alleges that no one in the group of

defendants (himself, Sapp, and Hardy) had the intent to kill Anthony King, and so he cannot

be accountable for first degree murder because no murder occurred. See People v. Griffin,

(1993) (if act committed by codefendants was not a crime, defendant

cannot be held accountable for it). But he omits the State’s evidence that Hardy grabbed

King, fought with him, and pushed him onto the train tracks. We can infer from this that

Hardy, at least, had the mens rea for first degree murder. And we can infer from Williams’s

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actions that he had a common design with Hardy. So his scenario is more like that of the

“leader-follower” situation.

¶ 70 Williams is correct that the State needed to prove that the mens rea for first degree

murder was present within the group of codefendants. A case could arise where the State

would not be able to meet that burden. See, e.g., Chirchirillo,

. But

this is not that case.

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