held legally responsible for the actions of johnny gonzalez on january twentieth two thousand and eight almost six years ago to the day from today's date and i don't just mean for any of the actions of your oeuvre johnny gonzales the principal in this case but for all of the one automobile where mr fernandez stayed in the car and mr gonzalez the principal broke into a car we contacted the car that my client was driving broke into a car and at some client made a confession after he was arrested he admitted that he intended to drive mr gonzalez to the scene and that he intended to remain in the car and he knew that mr gonzalez was going to or plans to rather  break into parked automobiles in order to steal however in this particular case and it's somewhat unique i don't think mr fernandez how do you or should not be held responsible for the yes absolutely the scope of the accountability statute is what i would submit is the real argument and the standard of review i would i would say as a threshold matter i mean i should back up and say under any standard of review i think that mr hernandez should not be held accountable for this aggravated just charge of a firearm however i do believe that the standard proper center of review for interpret in the accountability statute is knowable i do believe that that's that's correct the scope in this case i believe in the accountability statute and again to be fair i'm not advocating we're not advocating that that common design rule should be you know stricken or anything like that it's just that in this case where somebody intends to facilitate or aid or promote somebody and one offense in this case berggruen automobile which does not require a firearm and then again particularly this case there was no knowledge in fact or nothing in the record that shows mr my client here fernandez knew that johnny gonzalez had a firearm i think it would be different if the under the exact same circumstances they were on their way to break did you i did not know i did not address are you familiar with it or i've read the state's the state's brief and of course and the kesler case with respect to  not intimately familiar with it why is there a specific question well i mean we address i've got some facts on the case but i want to know how it's different from that case because in their case a plan to commit a robbery leads to an unexpected shooting by a companion the defendant thought was  defendant and his companions had jointly planned and you're not contesting that and were jointly committing and he was legally accountable for the conduct of the other in connection there with the result was the offense of attempted murder for the attempted murder by accountability of both a burglary you know the police i would submit your honor that it actually is different just because they went in to commit a robbery i think that with a robbery there's more of a chance it's more i don't want to hesitate to use the word forseeable but i think that there's a greater chance of there being some sort of armed conflict or resistance if you will to the robbery versus breaking into a car we were specifically looking for empty cars they were not i understand burglary is a forcible felony and i'm not trying to advocate that it be removed from that category but i'm saying that obviously there's a difference between going in and robbing an individual who enter or several individuals going into robbing an individual or a bar business something like that which is open and an occupied i think that would be different there's a greater chance of reserve meeting resistance and possibly violence a suing as a result of that robbery versus specifically looking for an empty car and i think that in this particular case because it was they were looking for empty cars and there  was a substantially lesser chance of resistance that i think it's less foreseeable or less i mean again to use the language of one of the cases that the state cites in their brief the brennan case one hundred fifty natural and probable consequences that may arise from its perpetration and i think that in the case where you're going to do a robbery and you know that their business is open or there's people inside i think it would naturally and and  probably i guess flow from that is a much more natural consequence that you'd be met with either resistance or violence or something like that and you think that distinguishment holes even were  in the case of the gave you there were two on arm companions that went into a bird to rob it and once in there they found a gun with a guy on the courtesan even know of that is that two other people in the current had a gun they found a gun inside well i i'm i'm sorry are you going to i'm just i'm just running on i just i think there's an important case that needs to be distinguished i want to give you the opportunity to do it well i think that again i do think it is different and i think that  i mean i don't want to say that that case was i don't know i'm not as familiar with that case obviously as i am with this one but i think that in that case it's a judgment call that it's reasonable whether that's natural and a probable consequence of what was done i think it would be different if they went in and they ended up beating somebody or if they went in and somebody had a heart attack as a result of that robbery i think that it all depends they found a firearm obviously i would say i mean i'm a defense attorney so i would say maybe that the person who made on the card wasn't necessarily in on that plan and it's not a natural and sort of foreseeable consequence of that offense however i mean you with your it's your honor said it's a case in this case and i think to distinguish it i think would be that the sort of the seed of that first offense in that case was a robbery which i think the fact that you're going in to take personal property from another person or a group of people or a business that's occupied that is different than specifically looking for an empty car to break a window and steal a stereo or an i pod or or whatever it is you're looking for in one case i think it's a substantially greater chance of consequent ultimate consequence of meeting violence and then whatever happens after that i think is so would we have to look at every case and on as facts to determine whether there's a chance take a burglary of a house that same facts accept it's a burglary sort of a robbery two people go in and it turns out the house is not is in fact occupied and somebody gets shot whether it's the perpetrators  proximate cause the theory of felony murder i think that there is a way out there's a there's that causal chain that can be broken is it foreseeable of course and in the felony murder sort of severe it is foreseeable that the police will show up and that is and that somebody might get shot why because police are always arm every eye on duty police officers they don't go to their job without a firearm without a gun and it's reasonable to for c or to wear the youth specifically think about it or not it's reasonable to think that you might be met with resistance or violence whereas in this case both the offense legally that my client agreed to assist in didn't require a gun he also in fact didn't we're not talking about a police officer who's on duty who always carries a firearm there's nothing in the record about m about my client knowing or frequently seeing mr gonzalez with a gun he wasn't known to carry a firearm is something in the record is totally silent on that so i think that that does make for an important distinction because with regard to your second issue and look back to their relevant to show our national common design and is it your position that we cannot consider the events after the  you for purposes of accountability you can only look at the duration of the offense to see whether or not the the different the defendant intended to aid the principle you only look at the racial difference from start to finish except for in com design cases that's not what it said it said important cases of accountability you are specifically not to look at what happens after the offense i think again that's another important point to make the state's brief is  examples of he lot my client lied after the fact and he he sought medical treatment in an apartment and he he fled obviously and i think that all those points don't they don't benefit of the state in a think in the sense that they would like them to because i gather with quoting dennis and then recently the appellate court in phillips i think that that was not supposed to be with all respect to the appellate court i think that was not supposed to be on the trial court as well that was not supposed to be considered in this case whether what happened after the offense had been completed you're looking at all the matters of the accountability statute is whether or not before or during the offense my client intended to promote facilitate and so on and so forth the defense in this case and we don't contest the statement we don't and you know i actually think that the statement strangely i don't say this very often as a defense attorney  the statement actually helps my client with the point that i'm trying to make in this case he doesn't mention anything about a firearm he never saw a firearm the state's attorney he made a full statement he didn't start and then stop and then lawyer up or anything like that he made a full statement he signed it he interpretation it's all it's not contested by the state that my client is not the one who actually committed the offense in this case the state proceeded at trial and obviously on appeal we argued they argued as well that he was to be held accountable for the actions of another person under the accountability statute is there something about the words the plain language of the statute that was supposed to be interpreted here i believe it's whether or not the actions of my made him accountable where was the evidence was sufficient you know whether he was legally accountable under the set of facts given the fact that he's to try to take all the evidence at trial not asking to exclude any of it i mean it was they want a lot of issues that were contested in this case and on appeal obviously we're not arguing anything with respect to discount this witness or witness credibility or anything like that we're saying that except that all is true in this case is perpetration of the the offense of aggravated discharge a firearm in the direction of a police officer officer got in my client may have been involved in driving him to the scene but there was no plan there was no  nothing in the record at all it's totally silent about firearm or about shooting somebody shooting a police officer for that matter mr mcdermott is your worse efficiency the evidence traditional reasonable doubt if you will search and see the evidence of argument where i said that i mean because there was actually a and again it's not like it's not why we're here right now arguing but there was a lack of a startling lack of physical evidence  as to the shooting there was only the only person whose shells were recovered from the scene were the officer who claimed that he was shot at first the people who heard shots the testimony at trial was that there  were substantially fewer shots than what saddam testified to all those issues were raised credibility context with again the standard of review being in a light most favorable to the state's attorney but i thought and i believe that is a different argument this is as a matter of law is the accountability statute satisfied with the evidence that was introduced at trial including my client statement of all of that together whether that satisfies the accountability statute for the offense of aggravated discharge firearm not with respect to again the burglar which i we have no we make no bones with so thank you very much you please to corner madam chief justice honorable justices wrongful my name is kathy warneke and i represent the people of the state of illinois the defendant comes before this court this morning and he seeks to avoid responsibility for an aggravated discharge of a weapon crime which occurred after the proclivity according to the defendant because he just planned the burglary he should be responsible for anything else but the defendant's argument overlooks the well founded principles of accountability set down by this court this case is really a textbook case upon accountability in my opinion this court has often stated that you can establish accountability by one of two ways either by a shared intent or a common design this case has both the defendant and gonzales had a shared intent to commit a burglary and the aggravated discharge of a firearm offense which happened was in furtherance of their crime it is established under the common design rule of course way back in eight hundred fifty four this court and when vs people first talked about common design and their case a group of people chased the victim from a store into a bar where he was killed and at trial the defendant said we should have an instruction the jury should be instruction instructed that we can't be found guilty of murder i was we specifically intended for the act to happen in this court said no this court took that under the common design role and he had done in furtherance of a common design is the act of all in all are guilty of the offenses which flow from it in the case after case after case because terry all of the offense things happen offenses happen which aren't necessarily intended or foreseen but under the common design rule that does not make the defendant any of the was guilty for the defendant in this yes that's what the defense is arguing and the defense actually scuse me that the sand was making an argument of statutory construction based on the two thousand and ten amendment to the account to be accountab which includes the common design language that common design language was not in the statute in two thousand and eight at the time of this offense but nonetheless it really codified the common design role and the response to that is clearly if you look at the accountability statute the beginning of the countability statute said a person is responsible for the conduct of another and then kessler this court says their conduct includes any offense which happens in the course of the planned or intended fans so clearly in the accountability statute itself it refutes any notion that you have to have a separate specific intent for each case that happens what the defendant is really doing is he's coming before this court and he's asking this court to depart from its won standing tradition of the common design rule and i would submit to this court that the defendant could not cite to one single case of this court not one single thing that supports his position because there is not this is a rule that makes sense what does the defendant argue in his brief he argues the case of people versus phelps he argues that philip supports his position because he wants this court to adopt a position where he has to be or excuse me that the state yes to individually prove a specific untanned for each and every offense that happens when people act together but they had this not the law was sitting behind in the driver's side seat the victims and the defendants knew each other and the state a state i wish again most of the shooter got out of the car shot the victims so worst move to pick him up sanders got back in the car and they fled just to squint in his dissent said this is not even a close case of accountability yet the appellate court reversed the trial court's decision argument in court today is based upon phillips and phillips was wrongly decided phillips is causing problems in the courts below cases are being reversed because of philips and i would submit that is based upon a flawed if a patient of accountability law first in philip's first thing i'd like to address about philips is that philips and this is where defendant gets his argument today that cannot consider and the phelps court found they could not consider the fact that the defendant phelps was a getaway driver and the court said and i call that the fact that he's a getaway driver is irrelevant for the purpose of establ and all of those cases this court has consistently said that to determine accountability what is wrong then is that the defender was present during the commission of the fans that he maintained the false affiliation with the defendant  excuse me in this case the shooter would have to be a fan that he failed to report the crime that he fled also things aren't supported they don't define accountability the state does not arguing that somebody can be guilty for a crime simply because they do something after the crime occurs that's what dennis says this is something entirely different and it's a very important difference because what this court has done over the years of accountability is i has given the trier of fact every tool it needs to determine whether someone is accountable or not and at the end of the day it's really a unique question in the province of the trial where do these people do it taylor were not common design cases they talked about the length of the offense they said that for accountability purposes that accountability can be determined only as far as the elements of the offense occur so in other words if you are only the getaway driver if the evidence shows that you didn't know anything about what was going to happen then you can't be guilty but what it doesn't say is that you can't look at what happened afterward and determine whether in your opinion the defendant knew about this and really although my opponent wants to discount when he happened afterwards in this case there can be no greater case of accountability or example of countability because they not only agree to a crime he drove them in the morning the defendant was the shooter got out of the car he was interrupted by a police officer at that point fernandez moved his car to pick up the shooter the shooter goes around the defendant's car and he literally uses the defendant's car as a she'll to fire at a police officer the police officer fires back and even though the defendant's hit he flees at a high rate of speed he hides the car that's now riddled with bullets he lies to his family and friends he refuses to seek medical treatment because he doesn't want to alert the police when you look at all those factors you you know it gives you an insight into the defendant and even aside from the statement you don't have to have statements and accountability cases we do here this is not a subgroup situation we have a statement and then we have a crime in furtherance of it but you don't have to have statements because what the defendant does speak volumes they are not always statements you know he didn't give a stay most of the burglary defines take themselves out all the time of things but the fact that he says doesn't say anything about it on the fact that he does and meant that he knew that there was going to be shooting it's relevant in this case because he agreed to the burglary and the shooting that he had been is and photographs of the burglary the one thing i'd like to talk to briefly about philip's is something that i think is causing great problems below and it's causing confusion as to the accountability and this point about the labs is really what the fan that tries to arrest this head on in this case and that you asked to determine if there's a common design to determine whether there's a common design you look to whether they attach themselves to a group bent on our we go activity the philips court specifically found that the defendant cannot be guilty of the aggravated discharge of a weapon in the act case because the state didn't prove that he specifically knew the shooter had a gun or that he specifically knew the shooter was going to use  yes yes because when you quote phillips for that reason you overlook the basic common design role the question to be asked again is whether the defendant attached himself to a group based on illegal activity and thank you justice t for talking about the castle case because the caster case is exactly like the case before this court the defendant didn't know it didn't make any difference whether he knew that somebody was going to be shot because he engaged in a felony and he was responsible for what h in an accountability sense yes can he be found guilty for it just because he does something afterwards no but for factors of accountability yes absolutely and the one other case that i want to talk about is the hamilton case which i think is just a great case pier and eventually the victim was struck by the hole now in the act case there's no way that the defendants could have known that a whole lot about her been used yet this court found them guilty and currently responsible for assault with a deadly done by the use of the hall so the case shows that you don't have to know what's going to happen you don't have to anticipate it when you attach yourself to a group than time in a legal purpose you are responsible for anything that flows from it it brings us back to this case in this case the defendant planned a burglary he agreed to a burglary and he participated in a burglary he is equally guilty just as the shooter for the aggravated discharge of a firearm offense we would ask that this of the defendant's conviction we would also ask that this court take the opportunity to reaffirm its longstanding support for the common designer all and to clarify for you the state obviously i know that they take issue with our position in this case and again i'm we are not advocating that the common design rule be stricken from the books or anything like that but i think that  think there has to be an exception just like in felony murder there's an exception if something happens that breaks that after the first felony or during the first only that breaks the chain of events the causal chain of events in a lot of it especially in felony murder in illinois they overlaps a lot with a tort principles and things like that of foreseeability and according to the state's own cases the sort of natural and probable consequence of that initial action i think that is a very fair way of looking at this in this case you have an offense where there's not only factually nothing about a firearm nothing about a gun but it's not only not required for the offense of burglary to an auto but in fact there is nothing in the record that my client knew this gonzalez often carried a gun or add on that day or so on loaded or anything like that i think that that it's substantially less likely when you're committing a burglary an auto again through an accountability theory my client was sitting in a car you know sort of crawling so way i think it's substantially less foreseeable that it's going to end in a shootout you're facilitating a even though it's a forcible felony my client was facilitating a according to his statement a nonviolent offense he didn't know this person had a gun he wasn't going to steal property from any person there was no discussion of force or threat of force he was going to break into a car make it look for a stereo or an i pod in my client didn't even want any part of it so i sat in the car he drove in there he's legally responsible for the burglary we don't contest that but i think that to just say anything that happens later anything that happens before or during or after the ultimately as this ultimately question for a jury or from the court to say well alternately i think it was with respect to have your fernandez i think it's up to your honor's it whether that broke the chain again if you if you employ a similar reasoning as is in the felony murder line of cases where foreseeability is specifically an issue i think that in this case and i think it's again it's important i can't overstate this i'm not saying we're not saying that common design is flawed or it has no place in illinois jurisprudence or anything like that but however there has to be i think a no nonsense kind of well this isn't count there was no real common design here i mean for with respect to the offense that ultimately occurred in the state's attorney and every court room in the entire state has been peddling this in for a penny in for a pound thing you know when accountability cases since forever i'm i'm guessing and i think that this takes it even further that this is more like in for a penny in for a metric time and i think it just in under the facts of this particular case where you're talking about a you know offense that i literally my client was involved in the planning  promotion of that offense he drove me facilitated absolutely but that offense does not require a firearm breaking into parked cars and he didn't actually see a firearm i think that the philip's case was well reasoned it put it he put a limit on this this common design and i mean it again it's very fact specific item state makes it sound like you know now an act common design has no teeth now because the phillips i don't think that's the case common design still exists however under the facts of philips even worse someone drives you to the offense or drives a shooter to the to the scene of the offense scene of the shooting and cuts off the other car and then backs up the car and then because there is more than just soaring in there is a difference and i think that i think that they were lap to be to be sure i think a lot in a lot of cases you might have a shared intent and a criminal a common criminal design of the same time i think that in this case i don't think either one of those the state can get where it wants to go using either one of those because certainly my client did not have a i think there's actually a stronger case that he did not have a shared criminal intent to just as the state gave you a very direct answer yes anything that happens in furtherance anything at all it's a sense they are arguably they're arguing rather strict liability that this is just if you if you do one thing that's it anything that happens later i mean there's i think that there has to be an exception or there has to be this is too far and this court has recognized that with felony murder in the context of if something breaks the chain of proximate cause and this court has said it can't go past this line i think that's a fair rule for accountability i think that that could serve the state citizens of the state well i think that you know again no one's saying that the first crime he should be acquitted of that or he should you know go home or even though we're not saying that at all with respect to the offense that was unforeseen it was not planned it was not promoted it was not discussed there is no evidence in the record you know about a firearm under these limited facts i think that this was not done in furtherance and that we would and that's why we would ask this