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July 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.HERBERT BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0673.
Submitted September 23, 2009
Before Judges Graves and J.N. Harris.
In a twenty-two count indictment, defendant Herbert Brown was charged with three armed robberies of small grocery stores in the City of Paterson on December 23, 26, and 27, 2005, and various other offenses. Passaic County Indictment No. 06-06-0673 charged defendant as follows: three counts of first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (counts one, seven, and twelve); five counts of fourth-degree aggravated assault (pointing a firearm) in violation of N.J.S.A. 2C:12-1(b)(4) (counts two, three, eight, thirteen, and fourteen); three counts of second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (counts four, nine, and fifteen); four counts of third-degree unlawful possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b) (counts five, ten, sixteen, and eighteen); four counts of second-degree possession of a handgun by a prohibited person in violation of N.J.S.A. 2C:39-7(b) (counts six, eleven, seventeen, and twenty-one); one count of third-degree receiving stolen property in violation of N.J.S.A. 2C:20-7 (count nineteen); one count of fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a)(3) (count twenty); and one count of third-degree hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(4) (count twenty-two). Count three, charging defendant with fourth-degree aggravated assault, was dismissed on defendant's motion at the end of the State's case, but a jury found defendant guilty on the remaining charges.*fn1
At sentencing on June 8, 2007, the trial court noted the case involved three first-degree "armed robberies of bodega type stores with a firearm" and summarized "the facts that the jury accepted" as follows:
The State is correct in the way to describe this, this was three first[-]degree armed robberies of bodega type stores with a firearm. I think it's important, because of the serious nature of these charges, just to review the . . . facts. And these are the facts that the jury accepted. . . .
. . . [O]n December 23rd of 2005 Paterson Police were investigating a robbery that took place at 354 Market Street. Two victims there, Juan Gomez and Gerardo Ayala. And I had the opportunity to observe these victims during the course of the trial.
They said the suspect entered the store with a black, small automatic handgun, took approximately $100 cash from the register. The suspect then ran from Market Street and Summer Street towards Park Avenue. And they gave a complete description.
Then on December 26th, just three days later, another armed robbery occurred at 954 East 19th Street. And here the victim[s] [were] Francisco Reyes and [Karilyn] Reyes. Here the suspect held Mr. Reyes at gunpoint. At that time Mr. Reyes yelled out to his daughter, [Karilyn], to put the money in a [bag] because there was a hold-up. The suspect took approximately $300 in cash and fled the store.
One day later, on December 27th 2005, another armed robbery occurred at Aracena Grocery located at 34 Essex Street. The suspect held a gun to Miguel Lopez's head and he ordered Mr. Lopez to the floor. The suspect then ordered Jose Aracena to place the money in a bag. The suspect took approximately $700 in cash and then fled the store south on Madison Street.
And then on the 28th there was -- the investigation was very intense regarding these robberies. And this defendant was observed with a large group of males congregating in an area. They focused on him. He attempted to flee towards Park Avenue. He matched the description of the person who was wanted for the armed robberies. He was apprehended at that time.
Black handgun was found in his waistband.
On counts one and twelve (first-degree robberies), the court sentenced defendant to concurrent eighteen-year terms subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on count seven (first-degree robbery), the court imposed a consecutive eighteen-year term subject to NERA; and on count six (second-degree possession of a handgun by a prohibited person), the court imposed a consecutive five-year term with five years of parole ineligibility. Concurrent sentences were imposed for the other offenses. Thus, defendant's aggregate sentence was forty-one years in prison, with thirty-six years subject to NERA, and an additional five-year period of parole ineligibility for possession of a handgun by a prohibited person.
On appeal, defendant presents the following arguments:
BECAUSE THE JOINDER OF ALL THREE ROBBERIES FOR TRIAL WAS OVERWHELMINGLY PREJUDICIAL AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, HIS CONVICTIONS MUST BE REVERSED. (Not Raised Below.)
THE PROSECUTOR'S OPENING STATEMENT WAS SO OUTRAGEOUSLY IMPROPER AS TO IRREPARABLY TAINT THE OUTCOME OF THE TRIAL, REQUIRING REVERSAL. (Not Raised Below.)
Based on our review of the record, the briefs, and the applicable law, we are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We remand, however, for resentencing.
On the night of December 23, 2005, Juan Gomez and Gerardo Ayala were working at Gomez's bodega on Market Street in Paterson when a man they later identified as defendant came into the store on two separate occasions. The first time he entered, he bought candy and left. When he returned, defendant pointed a gun at Gomez and demanded money. Gomez opened the cash register, and defendant took approximately $800. Gomez and Ayala both described the man who robbed the store to the police and, according to Gomez, he had a good view of the robber because he was in the store for two to three minutes, the store was well lit, and the man "had nothing on his face."
The second robbery occurred three days later, at approximately 6:45 p.m. on December 26, 2005, at a bodega that was approximately 275 yards from the first robbery location. Francisco Reyes and his daughter, Karilyn Reyes, a college student, were working in their family owned grocery store in downtown Paterson when a man they later identified as defendant, entered the store and ordered a sandwich. As Francisco began preparing the sandwich, defendant went behind the counter, pulled out a gun, and demanded money. Francisco told his daughter to put the money from the cash register into a bag and to give it to defendant. According to Karilyn, defendant was holding a gun to her father's neck, so she put approximately $300 to $350 into a bag and handed the bag to defendant.
Francisco and his daughter both testified that the store was well lit, and they provided the police with a description of the man who robbed them. They also gave the police the tape from a video surveillance system that was operating at the time of the robbery.
The third robbery occurred the following night, on December 27, 2005, at another small convenience store located about 100 feet from the first robbery. Miguel Lopez and Jose Aracena were working at the store when it was robbed by a man they later identified as defendant. According to Lopez, defendant purchased a sandwich and left the store. When defendant returned, he pointed a gun at Aracena and told him not to move. Defendant then pointed the gun at Lopez and told him to put the money in a bag. Lopez did as he was told and defendant left with approximately $600. The police arrived within minutes, and both men described the robber to the police.
As part of their investigation, the Paterson Police Department prepared a description of the suspected robber and distributed it among patrol officers within the department. The suspect was described as a black male "in his thirties, between five foot five and five foot eight. About 170 to 190 pounds. Clean shaven. Bald head with a mark or scar on his forehead. . . . Suspect was wearing a black jacket [and] blue jeans." The officers were also informed that the robberies occurred in the midtown section "around 17th [Avenue], Park Avenue, Market Street."
At about 9:15 p.m. on December 28, 2005, while Officer Robert Orozto and his partner were on routine patrol in downtown Paterson, he observed a large group of males "congregating on the corner, making the sidewalk impassable." Orozto testified he intended to issue summonses to the individuals for obstructing a public passageway, but when he approached the group, several individuals, including the defendant, fled on foot. Orozto noticed that one of the men fit the description of the robbery suspect and after a short chase, defendant complied with Orozto's command to stop and to put his hands in the air. When Orozto told defendant to turn around, he moved his right hand toward his waistband. At that point, Orozto rushed him, grabbed his hands and conducted a patdown for weapons. A loaded handgun was recovered from defendant's waist area.
Defendant was initially charged with unlawful possession of a weapon. However, because he matched the physical description of the robbery suspect, his photograph was part of the photo lineups that were viewed by the victims. All six of the robbery victims selected defendant's photo from photographic arrays, and each of the victims made an in-court identification of defendant. In addition, five of the six witnesses identified the handgun that was recovered from defendant.
Although defendant did not file a severance motion, he argues in his first point that reversal is required because "the joinder of all three robberies for trial was overwhelmingly prejudicial." We do not agree that the court's failure to sua sponte order three separate trials had the potential to cause an unjust result. R. 2:10-2. Rule 3:7-6 permits joinder of multiple charges in a single indictment "if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan."
In this case, defendant's use of the same handgun to rob three small convenience stores within the same neighborhood during a five-day period suggested a common plan or scheme to target similar victims, and the three robberies were sufficiently similar to warrant joinder. Even if the robberies were tried separately, evidence of the similar crimes would have been admissible as probative of defendant's motive, intent, plan, and identity under N.J.R.E. 404(b). Accordingly, the charges were properly joined. See State v. Pitts, 116 N.J. 580, 601-02 (1989) (noting that the potential prejudice from joinder of offenses is significantly lessened when "evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges"); State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983) ("[A] defendant will not suffer any more prejudice in a joint trial than he would in separate trials, because the evidence of the other alleged crimes would be admissible in any event under [N.J.R.E. 404(b)].").
In his next point, defendant contends the prosecutor's opening, which was not objected to, was inflammatory and unduly prejudicial. Defendant must demonstrate plain error under Rule 2:10-2 to prevail. Plain error is "error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Irving, 114 N.J. 427, 444 (1989) (citations omitted). In this case, defendant asserts that the prosecutor's repeated reference to "when is enough enough?" was "a call to arms" that requires reversal. On the other hand, the State argues that the prosecutor's opening "focused the jury's attention on the substantial evidence that the State expected to introduce at trial."
As this court has previously noted, a prosecutor's opening statement to the jury "should provide an outline or roadmap of the State's case. It should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence." State v. Walden, 370 N.J. Super. 549, 558 (App. Div.) (quoting State v. Torres, 328 N.J. Super. 77, 83-84 (App. Div. 2000)), certif. denied, 182 N.J. 148 (2004). We have considered the prosecutor's statements in light of the State's proofs and the court's instructions to the jury, and we are satisfied the prosecutor's comments did not deprive defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999) (to constitute reversible error, prosecutorial misconduct must be "so egregious that it deprived the defendant of a fair trial").
In his third point, defendant contends he is entitled to a new trial because the out-of-court identification procedures were so unduly suggestive that they created "a substantial likelihood of irreparable misidentification." Following a Wade*fn2 hearing, the trial court found "the Attorney General's Guidelines were properly followed" and the identification procedures utilized by the police were not impermissibly suggestive. The court's findings and credibility assessments regarding the out-of-court identification procedures are amply supported by the record and are binding on us. State v. Locurto, 157 N.J. 463, 474 (1999). Moreover, we conclude from our independent review of the record that the out-of-court identification procedures were reliable and properly admitted into evidence.
Lastly, defendant asserts the court failed to articulate reasons for imposing a consecutive eighteen-year term on count seven. See State v. Miller, 108 N.J. 112, 122 (1987) ("A statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions."). We agree the court did not discuss the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Accordingly, we remand for reconsideration of the sentence on count seven. The court must evaluate and analyze all of the Yarbough guidelines and determine their applicability in the circumstances of this case, in determining the appropriate length of the sentence on count seven, and whether it should be served consecutively or concurrently.
Defendant also argues that the sentencing court erred in finding aggravating factor two. N.J.S.A. 2C:44-1(a)(2) states that "[t]he gravity and seriousness of harm inflicted on the victim" may be considered as an aggravating factor in determining a sentence. In applying this factor to defendant, and in weighing the aggravating and mitigating factors, the court stated:
So we have the . . . need to deter. We have his prior record. He has a juvenile record that goes back to '96, conspiracy to distribute CDS. He violated his probation on that. Then he had a carjacking referred for adult disposition, which later on in 1997 he received ten years with five before parole. Possession of a firearm for an unlawful purpose. So he has this prior offense which is of a violent nature with the use of a handgun. That was in '97. And then this string of robberies, again, violent nature, use of a handgun.
So there's [a] very, very strong need to deter. The Court also finds in this case the victims were particularly vulnerable and the harm on these victims was substantial.
To have these guns pointed in their face and even held to their heads. Those are the aggravating factors. Mitigating factors, there are none. The Court finds that the aggravating factors overwhelmingly outweigh the mitigating factors.
Thus, the court did not explain why the victims were "particularly vulnerable," or why it found that defendant had caused substantial harm by pointing a gun at the victims. Moreover, none of the victims sustained any injuries, and the use of the gun elevated the robbery from a second-degree offense to a first-degree crime. N.J.S.A. 2C:15-1(b). Under these circumstances, the court should not have again considered the use of the firearm as an aggravating factor. State v. Pillot, 115 N.J. 558, 564 (1989). See also State v. Kromphold, 162 N.J. 345, 353 (2000) ("[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence.").
Accordingly, the trial court must reconsider defendant's sentence on count seven within the entire framework of Yarbough, without weighing aggravating factor two in the balance. Of course, the focus should be on the fairness of the overall sentence. See State v. Natale, 184 N.J. 458, 488 (2005) ("The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court.").
Except for defendant's sentence on count seven, we affirm. The matter is remanded for reconsideration of the sentence on count seven. We do not retain jurisdiction.
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RGM-111G Hardygun Close Combat Type
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The RGM-111G Hardygun Close Combat Type is a mobile suit from the F91-MSV (Gundam F91 Mobile Suit Variations) design series.
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November 10, 1988
530 N.E.2d 1155, 176 Ill. App. 3d 197, 125 Ill. Dec. 746 1988.IL.1640
Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.
APPELLATE Judges:
PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and JOHNSON, JJ., concur.
The defendant, Preston Adams, along with co-defendants Lindsay Cannon and Andre Johnson were jointly indicted on charges of murder and conspiracy to commit murder. Prior to trial, Preston Adams moved for severance. This motion was denied. Following a jury trial, Preston Adams and co-defendant Andre Johnson were found guilty of conspiracy to commit murder and not guilty of murder. Co-defendant Cannon was found guilty of both murder and conspiracy to commit murder.
On appeal, the defendant Preston Adams argues: (1) that the trial court erred in failing to sever the trial; and (2) that the trial court erred in refusing to give a tendered jury instruction on withdrawal.
At trial, the State's evidence essentially consisted of signed court-reported statements made by Adams, Cannon and Johnson, who were all members of a street gang called the Disciples. Adams' statement established the following.
On October 6, 1984, Adams met Cannon and Johnson at the house of a man named Archie Adams. They talked about going to a residential building at 2051 West Lake Street. Preston Adams characterized 2051 West Lake Street as the "Vice Lords building" and stated that they were going there to "get some Vice Lords who had shot at them earlier" that day.
That evening, Adams, Cannon and Johnson went to 2051 West Lake Street. Adams carried a .38 caliber revolver, Cannon carried a .22 caliber rifle, and Johnson carried an umbrella. When they got inside the building, Adams and Johnson separated from Lindsay Cannon. After looking around and not finding "the guys who had shot at us earlier," Adams and Johnson left the building. Once outside the building, they got into an argument because Johnson wanted the gun to go back inside the building. As Johnson raised the umbrella to attack Adams, Lindsay Cannon, who had just come out of the building, came in between them and kept them apart. Seconds later, someone yelled, "Vice Lords" and started shooting at the three of them. Adams and Cannon "both turned around and returned fire." Adams fired five shots with the .38 caliber gun which he carried. After returning fire, all of them ran to another building.
The court-reported statements of Cannon and Johnson gave the same account of the events of October 6, 1984, except for one discrepancy. Adams stated that they went to 2051 West Lake Street to "get some Vice Lords who had shot at them earlier" that day. Later in his statement, Adams stated that they were looking for "the guys who had shot at us" earlier. In his court-reported statement, Cannon stated that they went to 2051 West Lake Street to "get even with some boys that shot at [Adams] during the day." Johnson also stated that a member of the Vice Lords shot at Adams earlier that day.
Undisputed testimony at trial established that one of the shots fired by Cannon's gun fatally wounded Edward Barrow, who was on his way to visit his mother in the 2051 West Lake Street building. Barrow was not a member of any gangs.
Adams was the only defendant to testify at trial. On direct examination, Adams stated that not all of his court-reported statement was true. Adams testified that on October 6, 1984, he was standing outside his girlfriend's apartment when Cannon and Johnson approached him. Johnson told him they were going to 2051 West Lake Street because someone owed him money. Cannon was "hunching on me and everything" and when Adams saw the .22 caliber rifle which Cannon was carrying, Adams got the impression that if he did not go with them something might happen to him.
Adams also denied on direct examination that he possessed or fired a .38 caliber revolver at 2051 West Lake Street. However, on cross-examination, he admitted that he fired five shots with the .38 caliber revolver at the 2051 West Lake Street building.
Adams also alleged that it was the co-defendants who told him to make the inculpatory statements in his confession and he followed their orders because he feared for his life or the lives of his family. However, on cross-examination, Adams testified that he was never threatened verbally or physically by either Cannon or Johnson regarding testimony at trial.
Adams' first contention on appeal is that the trial court erred in failing to sever the trial. Adams' primary basis for this contention is that his defense is antagonistic to that of the codefendants. Adams' defense was that he did not voluntarily participate in the conspiracy.
A defendant does not have an automatic right to be tried separately from his co-defendants simply because they were all charged in the same indictment for crimes arising from the same circumstances. (People v. Bean (1985), 109 Ill. 2d 80, 92, 485 N.E.2d 349, 354.) However, when codefendants' defenses are so antagonistic to each other that one of the co-defendants cannot receive a fair trial jointly with the others, severance is required. (People v. Daugherty (1984), 102 Ill. 2d 533, 542, 468 N.E.2d 969, 973.) The decision whether to grant a motion to sever is discretionary with the trial court and will not be reversed absent an abuse of discretion. Bean, 109 Ill. 2d at 93, 485 N.E.2d at 355.
We fail to see how the defenses of Cannon and Johnson were so antagonistic that Adams was deprived of a fair trial. The court-reported statements of Adams and co-defendants Cannon and Johnson were essentially the same. Each statement stated that on October 6, 1984, Adams, Cannon and Johnson met at Archie Adams' house and discussed going to 2051 West Lake Street to "get" or "get even" with members of the Vice Lords who had shot at one of them earlier that day. All three statements further indicated that before going to 2051 West Lake Street, Cannon armed himself with a .22 caliber rifle, Adams armed himself with a .38 caliber revolver and Johnson carried an umbrella.
At trial, Adams' defense was that he was not voluntarily present at 2051 West Lake Street. He testified that not all of his court-reported statement was true. According to Adams' testimony at trial, Cannon and Johnson approached him outside of his girlfriend's house and forced him to accompany them. Adams also claimed that he did not have a .38 caliber revolver; however, on cross-examination, he admitted that he did use a .38 caliber revolver to fire five shots at 2051 West Lake Street.
To be considered antagonistic defenses, there must be a true conflict such that each defendant condemns the other but professes his own innocence. (People v. Fort (1986), 147 Ill. App. 3d 14, 21, 497 N.E.2d 416, 421.) Actual hostility is required. (People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349, 355.) Neither Cannon nor Johnson testified. The statements they gave do not profess their innocence and place the blame on the defendant. The fact that Adams' defense of involuntary participation was, as Adams described it in his appellate brief, clouded by statements of Cannon and Johnson (appellant's brief at 11) does not constitute actual hostility. This is not a case where Cannon and Johnson could only convince the jury of their innocence by convincing them to convict Preston Adams.
We are also not persuaded by Adams' characterization of the joint trial as akin to the unacceptable situation in Bean, where the trial became "more of a contest between the defendants than between the State and an individual defendant." (Bean, 109 Ill. 2d at 94, 485 N.E.2d at 355.) In Bean, defendant Bean and co-defendant Robert Byron were tried together for a variety of crimes connected with a death. Defendant moved for severance, which was denied. In his opening statement, counsel for Byron repeatedly referred to defendant. Counsel stated: "'Bob Byron is going to take the witness stand. He is going to testify. Because an innocent man can't wait to tell his story. And a guilty man will never take the stand.'" (109 Ill. 2d at 87, 485 N.E.2d at 352.) Counsel's attacks continued during cross-examination and closing argument as well.
In the instant case, Adams points out that Johnson's counsel cross-examined Adams for 75 pages while the State cross-examined for only 39 pages (appellant's brief at 13). This does not convince us that Adams was placed in the untenable position of defending himself against both the State and the codefendants. (Fort, 147 Ill. App. 3d at 21, 497 N.E.2d at 421.) Nor does Adams cite instances where the attorneys for Cannon and Johnson repeatedly tried to destroy Adams' case.
For the foregoing reasons, we do not believe that the trial court abused its discretion in refusing to sever the trial on the grounds of antagonistic defenses.
Regarding the denial of severance, Adams also argues that "when one or more of the co-defendants have made prior statements implicating the defendant the failure of the co-defendants to testify extremely prejudices the defendant by denying the defendant the right of cross-examination." Appellant's brief at 9, citing Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.
As stated above, the general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. Bean, 109 Ill. 2d at 92, 485 N.E.2d at 355.
Adams essentially argues that he was prejudiced because the codefendants did not testify and he could not cross-examine their statements. This Conclusion that this was prejudicial is based on the defendant's contention that he testified at trial in a manner that contradicted the statements.
This contention is without merit. All three statements essentially state that Adams and co-defendants Cannon and Johnson met at Archie Adams' house, where they discussed going to 2051 West Lake Street to "get" or "get even with" members of the Vice Lords who shot at one of them earlier that day. The statements also state that Cannon had a .22 caliber rifle which he shot, Adams had a .38 caliber revolver which he shot, and Johnson carried an umbrella.
At trial, Adams admitted that he went to 2051 West Lake Street and fired five times with a .38 caliber revolver at 2051 West Lake Street. This testimony does not contradict the statements; rather, it gives an explanation for his action. Adams is not trying to avoid his confession. He does not deny his participation, but consistent with his defense, Adams testified that although he went to 2051 West Lake Street, he did not go voluntarily. The statements of co-defendants Cannon and Johnson which are the same as Adams' statement do not speak to Adams' assertion that he did not go voluntarily. Nor do the statements of the codefendants implicate Adams and exonerate themselves. They do not implicate Adams any more than Adams implicates himself at trial. Adams fails to explain how he is prejudiced when he testifies to essentially the same facts as to those that were in the statements.
Adams argues that there is prejudice because he squarely places the blame on Cannon and Johnson. This may be prejudicial to Cannon and Johnson but does not address the prejudice to Adams.
There is one aspect of Adams' testimony which differs from his statement as well as the statement of the codefendants. At trial, the defendant stated that contrary to his statement, he did not meet the others at Archie Adams' house but that Cannon and Johnson approached Adams outside of his girlfriend's house. We believe that this is a minor discrepancy and does not establish Adams' contention that his trial testimony contradicted the court reporter's statements.
Therefore, we believe that because there was no prejudice, the trial court did not err in severing the trial on confrontational grounds.
The defendant's final contention is that the trial court erred in refusing to give tendered Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981) where there was some evidence that Adams withdrew from the conspiracy.
The defendant was convicted of conspiracy to commit murder. The defendant cites no case nor are we aware of any case which states that withdrawal is an affirmative defense to the crime of conspiracy. The traditional rule is that since the crime of conspiracy is complete with the agreement and an overt act, no subsequent action can exonerate the conspirator of that crime. (2 W. LaFave & A. Scott, Substantive Criminal Law § 6.5(f), at 110 (1986); see also People v. Harvey (1981), 95 Ill. App. 3d 992, 1003, 420 N.E.2d 645, 653 (concerning a conviction of solicitation to commit murder "[once] the evidence establishes that the essential elements of the offense have occurred, it follows that there can be no withdrawal from a completed offense")); United States v. Read (7th Cir. 1981), 658 F.2d 1225, 1233 "[withdrawal] is not . . . a complete defense to the crime of conspiracy").) In the instant case, there is evidence of an agreement: the defendant and his codefendants discussed going to 2051 West Lake Street to "get" or "get even" with a member of the Vice Lords. There is also evidence of an overt act: the defendant and his co-defendants armed themselves and went to 2051 West Lake Street to find a member of the Vice Lords. Because there was evidence establishing the essential elements of conspiracy, it was not error for the trial court to refuse to give tendered jury instruction No. 5.03.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
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Arrival at Reedy Island Quarantine of vessels from Cuban ports
T. F. Richardson
Public Health Reports (1896-1970)
Vol. 17, No. 33 (August 15, 1902), p. 1871
Published by: Association of Schools of Public Health
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