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Legitimate Claim Of Self Defense Gets Twisted Into An Armed Violence Conviction | Jabar Post Indonesia
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People v. Barnes, 2017 IL App (1st) 142886 (September). Episode 405 (Duration 12:06)
Defendant shot at someone that first shot at him, the state says this constitutes mob action and armed violence.
Issue What does it mean for two or more people to be “acting together” as required to commit the offense of mob action? See 720 ILCS 5/25-1(a)(1).
Gist Defendant Tyrone Barnes and an unidentified man shot at each other on the street, resulting in the death of an innocent bystander.
A jury acquitted defendant of felony murder but convicted him of armed violence predicated on mob action. He was sentenced to 24 years in prison.
The theory of the predicate charge was that defendant and the unidentified man acted together by “participating” in a “gunfight” that the State has likened, both at trial and on appeal, to a “21st century version of a duel” held on the streets of Harvey.
Facts Defendant was outside the restaurant waiting for his friend who went inside.
Defendant exchanged gunfire with an unidentified man in front of Gus Restaurant, a popular neighborhood spot located on Center Avenue near 153rd Street in Harvey. The unidentified man was with Bivens, who recently had a dispute of some kind with defendant.
That’s when Bivens came by with another man who was the shooter. Bivens had a beef with the defendant. The other man lifted his shirt and showing a gun and then started shooting. By this point defendant was back in his car and returned fired. The victim was hit by the other man’s shooting.
An errant gunshot fired by the unidentified man, and intended for defendant, struck and killed Sanders, a stranger who was passing by the restaurant.
Defendant was tried for the felony murder of Simeon Sanders, predicated on the aggravated discharge of a firearm at Maurice Bivens, and for armed violence predicated on mob action.
State’s Theory The State’s theory was that defendant and the unidentified man agreed to fight in a duel—a “shootout and a show-down in the middle of Center Street,” like “something that you would see at the Okay Corral,” or like “what happens in those western movies that we have all watched at some point growing up.”
The State argued that defendant agreed to the duel by standing in the street, assuming a “stand-off showdown position.”
Based on “this acting together of shooting at each other and creating this western scene in the middle of Harvey,” the State concluded, defendant was guilty of mob action.
The State views Bivens pointing at defendant, and the unidentified man displaying his gun, as the “challenge,” and defendant’s retrieval of his weapon and return fire after being shot at as the acceptance of the challenge.
Defendant’s Theory Defendant’s theory of defense, in turn, was that the unidentified man opened fire on him, and he returned fire in self-defense. For this reason, defense counsel argued, they were not “acting in concert with common purpose,” and thus defendant did not commit mob action.
The crux of his challenge is legal rather than factual.
Specifically, he argues that the “acting together” element requires concerted action—an agreement or common purpose—by the participants. The State says that it needed to prove only that defendant participated in the gunfight, regardless of any agreement or common purpose.
Thus, Defendant argues for a reversal of his conviction for armed violence, claiming the State failed to prove beyond a reasonable doubt that he committed the predicate offense of mob action.
Armed Violence “A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law” that does not “make[ ] the possession or use of a dangerous weapon” an element of the offense. 720 ILCS 5/33A-2(a) (West 2008).
Mob Action For the mob-action predicate, the jury received the pattern instructions; like the statute, those instructions use, but do not define, the phrase “acting together.” See Illinois Pattern Jury Instructions, Criminal, Nos. 19.03, 19.04 (4th ed. 2000).
So the jury was never instructed on the meaning of “acting together.”
Mob action, as charged in this case, was defined at the time as “[t]he use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” 720 ILCS 5/25- 1(a)(1) .
Among other things, the State had to prove that defendant was one of “2 or more persons acting together” in the use of force of violence.
Thus, the question of law presented: Do two (or more) people “act together” simply by shooting at each other; or does this statutory element require them to have an agreement, or otherwise to share a common purpose or intent?
Analysis The minimal case law on this subject, the plain language of the statute, and a review of the legislative history of the…
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