At trial the victim had testified, describing the events, and indicating that she was not entirely sure whether there was more than one intruder. The defendant was charged only as a principal, however, and the trial proceeded on this basis. After the jury had retired to deliberate, it sent the judge a note asking about accountability, a theory which had never been charged. In response, the trial judge gave an accountability instruction. In this decision, the supreme court held not only that this response was error, but that the error was not harmless.
Procedural law requires that instructions be settled before closing arguments begin.
Also, because defense counsel had not been allowed to address the accountability issue in argument, the defendant was deprived of his constitutional right to have his attorney present closing argument. The defendant may have been convicted on a theory he was never allowed to address. The convictions were reversed and the cause was remanded for a new trial.