FIRST DIVISION
June 30, 2003

JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Saesal Redmond, was found guilty of first degree murder andsentenced to 22 years' imprisonment. On appeal, defendant presented severalissues for review. Those issues have been condensed into five main issues:(1) whether the trial court erred in finding that he voluntarily consented toleave his apartment and accompany the police; (2) whether officers hadprobable cause to arrest after discovering a handgun in his bedroom; (3)whether his written statement was voluntarily given after spending 52 hours incustody and being interrogated 14 times after his arrest; (4) whether theState proved beyond a reasonable doubt that he was accountable for murder; and(5) whether his trial counsel was ineffective, where trial counsel failed tocall certain witnesses who allegedly would have corroborated his testimony andalibi.

BACKGROUND

Bryant Clark was fatally shot on January 28, 1998. Detective SteveBuglio was assigned to investigate the fatal shooting. Defendant was arrestedon March 12, 1998. The arrest report indicates that defendant was arrestedafter being implicated in the fatal shooting death of Bryant Clark and foundin possession of a .40-caliber handgun. Defendant and codefendant ClintWoods, who is not a party to this appeal, were charged with first degreemurder.

I. MOTION TO QUASH ARREST AND EVIDENCE

On defendant's motion to quash arrest and suppress physical evidence,defendant testified that on March 11, 1998, shortly before midnight, while hewas in bed, police officers came to his sister's apartment where he wasstaying. He testified that when the officers entered the bedroom, "They hadguns. They had their guns out. When I came to the door they had their gunsout." He testified that he was handcuffed in the kitchen and then takenoutside. He was not presented with a search warrant or a warrant for hisarrest and did not give permission to search the apartment. Defendanttestified that the police did not tell him why they where there. While he wassitting in the police vehicle with Detectives Riley and Doroba, neitherofficer mentioned anything about what happened at 69th Street and PaulinaStreet. He did not give the officers permission to search his car, but theytook his car keys from his pocket.

Defendant's sister, Arriane Redmond, testified that at about 11:55 p.m.on March 11, 1998, she heard a loud knocking at her apartment door. Theofficers identified themselves and Arriane opened the door. The officersasked her if defendant was there and she said, "Yes." As she turned to checkdefendant's bedroom, "two of the officers came through the kitchen area andthey like actually beat me to the back room door." Arriane stated that shedid not give the officers permission to enter her apartment. After defendantwas allowed to put on some jeans and a jacket, he was handcuffed at the cornerof the kitchen door. Approximately an hour after their arrival, Arriane wasasked to sign a white piece of paper. She signed the paper because shethought the detective was comparing her signature to that on the lease. Oncross-examination, Arriane testified that when the officer had her sign thepaper, the only portion visible was the signature line and she did not seeanything indicating that the paper she was signing was a consent to search. She saw an officer recover a gun from the box spring of defendant's bed.

Detective Buglio testified that he spoke with defendant's cousin, ClintWoods on March 10, 1998, in relation to the January 28, 1998, fatal shootingof Bryant Clark (also known as "Little Wolf"). On that date, Woods denied anyknowledge of the shooting. During a second meeting with Woods on March 11,1998, Woods named defendant as the shooter and stated that defendant used a.40-caliber semi-automatic handgun. Detective Buglio testified that two .40-caliber bullet casings were recovered from the murder scene. Woods toldBuglio that defendant either keeps the gun in his car, probably under thedriver's side rear seat or behind a vent, or in the bedroom where he sleeps. Woods told Detective Buglio that shortly before the shooting, he observedClark and defendant in the Red Shoe lounge. Woods later observed Clark getinto defendant's vehicle. Earlier that evening, defendant told Woods that hewas going to "rob Little Wolf." Woods told defendant to "be careful, becauseBrian [sic] Clark, the victim, is known to carry a weapon at times." Woodstold the detective that he saw defendant return to the lounge sometime after10:30 p.m. The victim was not with defendant and during a brief conversationwith defendant, defendant told Woods that "'It's been one for Shorty.'" Woodsrelated that that meant "Little Wolf was dead." Woods told Detective Bugliothat after that, defendant seemed to be spending more money than he usuallydid.

Detective Buglio further testified that a .40-caliber semi-automatichandgun was recovered from defendant's bedroom, "stuffed in the top of aboxspring where you could only view it from underneath the boxspring. It wasstuck between the boxspring and the top padding." After locating the gun, heplaced defendant under arrest and handcuffed him. Buglio testified that priorto that moment, defendant was not under arrest. Approximately 30 minutespassed between the time the detectives arrived and defendant's arrest. Oncross-examination, Detective Buglio stated that he read the reports of twoother officers that interviewed Woods on March 11, and the report indicatedthat Woods sold Wolf 4 1/2 ounces of cocaine. After the drug sale, Woods saidthat he did not see Wolf the rest of the night. Woods told Buglio thatdefendant and the victim were at the lounge separately.

Detective James Riley testified that he did not recall whether DetectiveBuglio had his hand on defendant's arm as they exited the apartment and camedownstairs. Riley stated that defendant was not handcuffed at that time. Herecalled that approximately 15 minutes passed between the time defendant wasplaced in a police car and the time the gun was recovered. Riley was askedwhether defendant was free to leave once defendant was placed in his policecar and Riley responded, "No, not really."

In August 1999, the court denied defendant's motion to quash arrest andsuppress the evidence. The court reasoned that the police were given "strongenough information" that they should investigate defendant after speaking withClint Woods. The court believed that taking defendant and placing him in thesquad car was not a violation and defendant was not under arrest at that time. Based on Arriane's age and background, the court also did not believe hertestimony that she did not know what she signed when she signed and dated theconsent to search form at her apartment. Further, because the police hadwritten consent to search, the police discovered the gun on the premises and"had full corroboration of someone, even if he's just the finger-pointer andis not implicating himself." In denying defendant's motion to quash arrestand suppress evidence, the court held that placing defendant in the unmarkedsquad car did not constitute an arrest; Arriane Redmond's testimony was notcredible; and the court noted that the police had a written consent and a tipthat was corroborated when the gun was found.

II. MOTION TO SUPPRESS STATEMENTS

Pursuant to his motion to suppress statements, defendant testified thathe was kept at the police station approximately 52 hours and left the roomabout 7 or 8 times, was allowed to used the bathroom about 5 times, and wastaken downtown once to take a polygraph test. While at the station, defendantasked to use the phone but the officers told him to wait. Eventually, he wasallowed to call home for approximately two minutes. Defendant testified thathe asked Detective Buglio and a couple of other detectives that kept coming inand questioning him to speak with a lawyer. During the 52 hour period, he wasgiven a bag of potato chips and a can of pop,and when he told the detectivesthat he did not know anything about the murder, Detective Buglio took the foodaway from him. During the 52 hour period, defendant slept in segments of 15to 30 minutes, for a total of 4 hours.

Assistant State's Attorney Villasenor spoke with defendant on fiveseparate occasions between March 12 and March 14, 1998. Villasenor testifiedthat he gave defendant his Miranda rights from memory before he interviewedhim at the police station. During the initial 30-minute interview, defendantprovided a statement. Villasenor began an interview with defendant at 2:30a.m. and started the handwritten statement at about 4 a.m. The statement wassigned at approximately 4:05 a.m. on March 14, 1998. Defendant was presentduring the entire time that the statement was handwritten. On March 13,defendant did not tell Villasenor that he wanted to speak with a lawyer or didnot want to give a statement.

Detective Buglio denied telling defendant that they would help him if hesigned the handwritten statement, threatening to arrest defendant's girlfriendor making any threats to defendant. Buglio stated that in his investigation,he spoke with two witnesses who were not together at the shooting, MarilynHardy and Jacqueline Husband. Buglio further stated during the State'srebuttal that he did not threaten defendant during the preparation of hishandwritten statement and did not take any food away from him.

Assistant State's Attorney Ignatius Villasenor testified in rebuttalthat the information in defendant's written statement came from the defendantand he was given an opportunity to change or review anything in thatstatement. Villasenor stated that neither he nor anyone else in his presencethreatened to "lock up" defendant's girlfriend and defendant told him that hehad been treated well by the police.

In March 2000, the trial court denied defendant's motion to suppress hiswritten statement. In its ruling, the court noted that in the several days oftestimony, several witnesses testified that defendant was advised of hisMiranda rights, though defendant asserted that he was not advised. Relativeto the 52 hours in custody, the court noted that there are two defendantsinvolved in this case, there was a polygraph exam and witnesses to beinterviewed during that time. The court reasoned that 52 hours in custodycould be "more than enough time to be in custody," when taking the "sleepingpatterns" into account. However, that was only one factor going toward thestatement and not enough to suppress it. Further, there was conflictingtestimony as to the food provided to defendant, but the court did not "believethat had reached a point where the statement could be suppressed."III. BENCH TRIAL

Defendant's statement, which was read into evidence by Assistant State'sAttorney Villasenor at trial, provided that Woods asked defendant toparticipate in a "lick," which "'means a robbery of some money or jewelry fromsome person.'" Woods asked defendant to serve as "'security'" while Woods andWolf committed the "'lick.'" Defendant "has known Wolf for about six months,and he met Wolf through Clint Woods." Defendant asked where the "lick" wasgoing to happen and who they were going to rob. Defendant stated that Woodsanswered that the "lick" "'was in the area,'" which defendant "'understood tomean in the neighborhood, and that [defendant] would not know the person.'" Woods stated that he and Wolf would go in the house and come back to the car. Defendant, Woods and Wolf "'sat around for about 30 to 45 minutes planning therobbery.'" Defendant was promised $2,000 should Woods and the victim find$20,000 inside. Woods expected that much money to be present because the manat the house was a drug dealer. After Woods made a phone call, Woods,defendant and the victim left the bar together. They used defendant's carbecause it was dark and nobody knew that car. Woods asked for the keys to thecar and told Wolf to sit in the front passenger seat and told defendant to sitin the backseat. The three drove from the bar. While driving, Woods tolddefendant to stay in the car while Woods and Wolf "'did the rest.'" Woodspulled into an alley on Paulina Street, turned the car around and parkedfacing northbound in front of a garage at about 6911 South Paulina Street.

Defendant's statement further provides that Woods and Wolf exited thevehicle and went into an alley together. After about two to three minutes,Woods and Wolf walked out of the alley, stood on the sidewalk and Woodsreturned to the car. Defendant was now sitting in the driver's seat. Woodstold defendant to wait there and walked back onto the sidewalk where Wolfstood. Woods approached Wolf from behind. Defendant then observed Woods pullout a .40-caliber handgun from his waist and point it at Wolf's head and firetwo times. Wolf fell to the ground. Defendant saw Woods bend down over Wolfand take money from Wolf's front pockets. Woods put the money in his ownpockets, entered the car and told defendant "let's go."

As he drove back toward the lounge, defendant asked Woods why he shotWolf, because he thought the "lick was supposed to be a house not a person, as[Woods] said before." Woods responded that Wolf was the "lick" because Wolfowed him $4,000. While in the bar's parking lot, Woods offered some of themoney taken off of Woods' person, but defendant declined because "that wasn'tthe plan." Woods and defendant stayed inside the bar for about 15 minutes. In the parking lot, defendant saw Woods pull out the same .40-caliber gun andasked defendant to hide it for him. Defendant took the gun home that nightand hid it inside the box spring of his mattress in his sister's apartment. Woods stated that he would get the gun later.

At the close of the State's case in chief, defendant moved for adirected finding and asked that the court "reopen the motion to quash andsuppress evidence and a motion to suppress statement." The State responded inoral argument. The court held that the State "put on enough for a prima faciecase" and defendant's motion was denied.

Arriane Redmond, Crystal Archie and the defendant testified on thedefendant's behalf. Following defendant's case in chief, defendant was foundguilty of murder based on accountability. Specifically, the court founddefendant's written statement to be credible, defendant did not share acriminal intent with the principal, but defendant was accountable for themurder based on his participation in a common scheme.

Defendant filed a motion to reconsider the finding, asserting that hecould not be held accountable for the murder because there was no evidencethat he took part in the murder or was united in a common interest with theprincipal offender of the murder. His motion for reconsideration was deniedand defendant was sentenced to 22 years' imprisonment with credit of 1,007days.

ANALYSIS

I. VOLUNTARINESS OF ACCOMPANYING POLICE

Defendant asks whether the trial court erred in finding that hevoluntarily consented to leave his apartment and accompany the police. TheState responds that defendant has waived this issue for review as he did notraise this in his motion for a new trial or his motion to reconsider thefinding of guilt. It is true that in order to preserve an argument, for thepurpose of appeal, the challenge must be presented to the trial court not onlyat the motion to suppress stage, but it must also be included in thedefendant's posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522N.E.2d 1124 (1988).

However, the principle of waiver "limits the parties' ability to raisean argument, not this court's right to entertain an argument." People v.Heard, 187 Ill. 2d 36, 60, 718 N.E.2d 58 (1999). Even if the issues have beenwaived, a reviewing court will sometimes override waiver considerations inorder to reach a just result and to maintain a sound and uniform body ofprecedent. American Federation of State, County & Municipal Employees v.County of Cook, 145 Ill. 2d 475, 480, 584 N.E.2d 116 (1991).

The determination of custody involves an objective analysis of thecircumstances surrounding the interview as a reasonable and innocent person inthe defendant's position would perceive them. People v. DeSantis, 319 Ill.App. 3d 795, 804, 745 N.E.2d 1 (2000). When one voluntarily accompaniespolice officers, he has not been arrested and has not been "seized" in thefourth amendment sense. See People v. Neal, 111 Ill. 2d 180, 193-94, 489N.E.2d 845 (1985).

Here, the trial court reasoned that it was not a violation ofdefendant's rights to have him in the police car while they conducted a searchof his sister's apartment. The court also held that he was not under arrestat that time. The trial court stated:

"As to the voluntary [sic], the officer stated that 'We asked him togo to Area 1 about something that was involving his cousin that I didn'twant to bring out in from of the other people in the apartment.' That,as the defense pointed out, to go voluntarily to the police departmentyou wouldn't normally do. But where they have been giving specificsinvolving your cousin, certainly is believable that that is what he isdoing."

Though we recognize there is evidence supporting each side, we cannot say thatthe trial court's determination that defendant went with the police freely wasagainst the manifest weight of the evidence. See DeSantis, 319 Ill. App. 3dat 804.

Defendant also contends that he was seized after being escorted out ofhis apartment and placed in the backseat of the squad car and notes thatOfficer Riley testified that he was not free to leave. We note that there wasconflicting evidence as to whether defendant was handcuffed and whether hecould exit the unmarked police car. In light of the conflicting testimony,the trial court was in the best position to observe the demeanor of thewitnesses while testifying, to determine which witnesses were credible. Theweight afforded to the testimony by the trial court must be given deferenceupon review, absent a clear abuse of discretion. Horace Mann Insurance Co. v.Brown, 236 Ill. App. 3d 456, 465, 603 N.E.2d 760 (1992). We cannot say thatthe trial court's determination relative to whether he was seized prior toarrest was a clear abuse of discretion.

II. PROBABLE CAUSE TO ARREST

Defendant next asserts that the officers lacked probable cause to arrestafter discovering a handgun in his bedroom, because the only person allegingthat the gun was used in the murder was a "lying, thrice-convicted felon andgang member with 23 arrests and a strong motive to save his own skin byplacing full responsibility for the crime on Redmond." The State points out,again, that this issue was not raised in defendant's posttrial motions and is,therefore, waived. Waiver notwithstanding (see American Federation, 145 Ill.2d at 480), we find that the trial court's ruling was not against the manifestweight of the evidence.

In determining whether probable cause existed to effectuate awarrantless arrest, a court must look to the totality of the circumstances andmake a practical, commonsense decision whether there was a reasonableprobability that an offense was committed and that the defendant committed it. People v. Tisler, 103 Ill. 2d 226, 237-38, 469 N.E.2d 147 (1984). Probablecause exists if a police officer has knowledge of facts that would lead areasonable person to believe that a crime has been committed and that it wascommitted by the defendant. People v. Neal, 111 Ill. 2d 180, 193, 489 N.E.2d845 (1985). Here the officers had information that defendant participated ina murder where a .40-caliber semi-automatic handgun was used. They foundmatching shell casings at the scene and, upon searching defendant's bedroom,found a .40-caliber semi-automatic handgun under his mattress. We hold thatthe officers had probable cause to arrest defendant under these circumstances. The trial court's decision was, therefore, not against the manifest weight ofthe evidence.

III. VOLUNTARINESS OF STATEMENT

Defendant also contends that based on the circumstances surrounding hiswritten statement, it was not given voluntarily. Again, the State assertsthat this issue has been waived for our review. In the interest of justice,we will review the matter. See American Federation, 145 Ill. 2d at 480.

When a defendant maintains that his confession was not givenvoluntarily, the State bears the burden of demonstrating that defendant'sconfession was made voluntarily. People v. Lash, 252 Ill. App. 3d 239, 242,624 N.E.2d 1129 (1993). Upon the establishment of a prima facie case, theburden of going forward with proof properly shifts to the accused. People v.Patterson, 154 Ill. 2d 414, 445, 610 N.E.2d 16 (1992).

The test for the voluntariness of a statement is whether, under thetotality of the circumstances, the statement was made freely, withoutcompulsion or inducement, with consideration given to the characteristics ofthe accused and the length of the interrogation. People v. Fuller, 292 Ill.App. 3d 651, 664, 686 N.E.2d 6 (1997). To determine the voluntariness ofstatements, the court may consider the age, intelligence, experience, andphysical condition of the defendant, the length of the interrogation, thepossibility of threats, promises or physical coercion, as well as the presenceof a parent or youth officer. People v. Williams, 275 Ill. App. 3d 249, 256,655 N.E.2d 1071 (1995).

Defendant here was interviewed by Assistant State's Attorney Villasenorapproximately five separate times between March 12 and March 14, 1998. Villasenor recalled that food was brought to the defendant and defendant toldhim that he was given soda, water, chips, hamburgers and fries to eat. Defendant stated that he was allowed to use the bathroom about five times andwas outside the interview room 7 or 8 times, totaling an hour and a half. Defendant testified that he was given a bag of potato chips and a pop, butclaimed it was taken from him when he told detectives that he did not knowanything about a murder. Defendant also acknowledged that he was allowed tomake at least one phone call, albeit, by his testimony not allowed upon hisfirst request. He recalled sleeping in 15- to 30-minute intervals and thatofficers woke him up about seven times. Defendant also testified that adetective cursed at him and grabbed him by the neck. However, defendantacknowledged to Assistant State's Attorney Villasenor, outside the presence ofany police officers, that he was treated well and allowed to call hisgirlfriend. Defendant's written statement also affirmed that he was treatedwell. Defendant and Villasenor testified that defendant did not adviseVillasenor that any officers abused him.

The trial court here considered all of the testimony presented at themotion to suppress hearing and noted in its ruling that 52 hours could be"more than enough time to be in custody," when taking the "sleeping patterns"into account, but that was only a factor going toward the statement, but notenough to suppress it." Further, the court noted that there was conflictingtestimony as to the food provided to defendant, but the court did not "believethat had reached a point where the statement could be suppressed." Rulings bythe trial court on the question of the voluntariness of a confession will notbe disturbed by a court of review unless against the manifest weight of theevidence. Patterson, 154 Ill. 2d at 445-46. After a thorough review of therecord, we cannot say that the trial court's decision was against the manifestweight of the evidence.

Alternatively, defendant contends that even if this court finds that thestatement was voluntarily given, it was still inadmissible because it was theproduct of an unlawful detention and attenuated from the illegal arrest. Because we hold that the trial court's ruling that the detention and arrestwere lawful, defendant's attenuation arguments are moot. In our view, theevidence in defendant's suppression hearing supported a finding that defendantvoluntarily agreed to accompany police to police station for questioning, andthus, defendant's statement made at the police station was admissible underthe circumstances described.

IV. ACCOUNTABILITY

Defendant next contends that the State failed to prove beyond areasonable doubt that he was accountable for Wolf's murder. Defendant assertsthat the "specifically planned offense" of burglary or robbery of the unknowndrug dealer was never attempted or completed. The State replies thatdefendant is accountable as a result of his agreement with his codefendant tocommit an armed robbery, even though he claimed to be unaware of Woods' planto murder and rob the other accomplice, not an anonymous drug dealer.

In Illinois, a person is legally accountable for another's criminalconduct when "[e]ither before or during the commission of an offense, and withthe intent to promote or facilitate such commission, he solicits, aids, abets,agrees or attempts to aid, such other person in the planning or commission ofthe offense." 720 ILCS 5/5-2(c) (West 2000).

It is also clear under Illinois law that one can be held accountable fora different crime other than the one that was planned. See People v. Kessler,57 Ill. 2d 493, 315 N.E.2d 29 (1974). Moreover, the Illinois Pattern JuryInstructions, Criminal, No. 5.03 (3d ed. 1992) (IPI Criminal 3d No. 5.03)contemplates this situation and provides:

"A person is legally responsible for the conduct of another personwhen, either before or during the commission of an offense, and with theintent to promote or facilitate the commission of [(an) (the)] offense,he knowingly solicits, aids, abets, agrees to aid, or attempts to aidthe other person in the planning or commission of [(an) (the)] offense.

[The word 'conduct' includes any criminal act done in furtherance ofthe planned and intended act.]" (Emphasis added.)

The accompanying committee notes provide: "Use the bracketed word 'an' and usethe bracketed paragraph when the offense is different than the planned andintended offense, but done in furtherance of it" (IPI Criminal 3d No. 5.03,Committee Notes, citing Kessler, 57 Ill. 2d 493).

To prove that the defendant possessed the intent to promote orfacilitate the crime, the State must present evidence that establishes beyonda reasonable doubt that either: (1) the defendant shared the criminal intentof the principal, or (2) there was a common criminal design. People v. Perez,189 Ill. 2d 254, 266, 725 N.E.2d 1258 (2000). Evidence is sufficient when arational trier of fact could find that the essential elements of the offensewere proven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237,261, 478 N.E.2d 267 (1985). "In assessing whether the evidence against adefendant was sufficient to prove guilt beyond a reasonable doubt, a reviewingcourt must determine whether, after viewing the evidence in the light mostfavorable to the State, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt." People v. Taylor,186 Ill. 2d 439, 445, 712 N.E.2d 326 (1999). A conviction should not be setaside on grounds of insufficient evidence unless the proof is so improbable orunsatisfactory that a reasonable doubt exists about the defendant's guilt. Perez, 189 Ill. 2d at 265.

A. No Shared Criminal Intent

As previously stated, one can be held accountable for the actions ofanother where: (1) the defendant shared the criminal intent of the principal,or (2) there was a common criminal design. See Perez, 189 Ill. 2d at 266. Inthe instant case, the trial court held that defendant "did not share criminalintent with the shooter," apparently accepting that portion of defendant'sstatement as true. We hold that the evidence supports beyond a reasonabledoubt the trial court's conclusion that defendant did not share Woods'criminal intent to murder and rob Wolf.

B. Common Criminal Design

Now we must determine whether the intent requirement of theaccountability statute was satisfied by defendant's participation in a commoncriminal design. The common design rule provides that where two or morepersons engage in a common criminal design or agreement, any acts infurtherance of that common design committed by one party are considered to bethe acts of all parties to the design or agreement and all are equallyresponsible for the consequences of the further acts. In re W.C., 167 Ill. 2d307, 337, 657 N.E.2d 908 (1995). Accountability may be established through aperson's knowledge of and participation in the criminal scheme, even thoughthere is no evidence that he directly participated in the criminal act itself.W.C., 167 Ill. 2d at 338.

After holding that defendant's written statement was credible, the courthere said:

"So, it gets down to the analysis of the accountability issue that isinvolved. Basically the facts coming to the statement was that therewas an agreement, according to the statement, between Mr. Redmond andthe codefendant, Mr. Woods. This agreement was to commit a robbery,that would have been the robbing of the victim. According to thestatement, Mr. Wood[s] shoots, what I would call an execution of thevictim in this case; that the Defendant in the statement agreed toparticipate in an armed robbery, but he had no intention to agree it wasa murder. In fact they were planning a robbery. The victim was therepresent in the bar. The shooting did not result from the robberybecause the shooter intended to both kill and rob the victim all along. And further on it also stated that Mr. Redmond states that he did nottake any money that was taken from the robbery."

Defendant asserts that the "specifically planned offense" of burglarywas never attempted and never transpired. He maintains that he had no intentto commit murder, just a robbery or burglary of a drug dealer. Defendantrelies on People v. Morrow, 303 Ill. App. 3d 671, 683, 708 N.E.2d 430 (1999),and People v. Sakalas, 85 Ill. App. 3d 59, 405 N.E.2d 1121 (1980), to supporthis claim that any conduct by him that may have facilitated the offense thattranspired was not performed with the intent that murder be committed.

In Morrow, although defendant-prostitute was engaging in an act ofprostitution at the time the victim's wallet was stolen, the evidence did notshow that she knowingly or voluntarily participated in the theft of the walletor in the subsequent act of murder committed by her pimp. Morrow, 303 Ill.App. 3d at 679. The Morrow court held that absent some evidence of othercircumstances or conduct from which it can be inferred that a person approvedof the offense and aided it by his presence, mere presence is not enough toshow that the person is an accomplice to a crime. Morrow, 303 Ill. App. 3d678-79, 708 N.E.2d 430 (1999), citing People v. Henderson, 142 Ill. 2d 258,316, 568 N.E.2d 1234 (1990).

In Sakalas, two men entered a bus and began striking the driver on thehead and arm with pipes. Sakalas said to his codefendant, "Man let's go" andgrabbed the driver's badge from his shirt-sleeve on the way out. Sakalas, 85Ill. App. 3d at 68. Because it was unclear whether the codefendant was stillon the bus when Sakalas ripped the badge off of the arm of the victim afterthey both assaulted him, or whether the codefendant assisted or attempted toassist in the taking of the badge, this court held that the evidence did notestablish beyond a reasonable doubt that the codefendant had a concurrent,specific intent to promote or facilitate the commission of the armed robbery. Sakalas, 85 Ill. App. 3d at 68. In the instant case, the State posits thataccording to defendant's own statement, he agreed to participate in an armedrobbery planned by Woods, knew that Woods had a gun and understood that theywould be engaging in a robbery of some money or jewelry from "some person." The State maintains that "[d]efendant agreed to act as security for an armedrobbery of a person chosen by Woods and now wants to complain because theperson chosen by Woods happened to be Wolf." It further asserts that weshould consider defendant's conduct following the shooting: namely, allowingWoods to reenter the vehicle and hiding the gun for him.

We acknowledge that "[n]ot even presence at the scene, coupled withflight or knowledge that a crime is being committed, is sufficient, withoutmore, for accountability purposes." (Emphasis added.) People v. Dennis, 181Ill. 2d 87, 108, 692 N.E.2d 325 (1998). However, proof that the defendant waspresent during the perpetration of the offense, that he fled from the scene,that he maintained a close affiliation with his companions after thecommission of the crime, and that he failed to report the crime are allfactors that the trier of fact may consider in determining the defendant'slegal accountability. Perez, 189 Ill. 2d at 267; People v. O'Reilly, 250 Ill.App. 3d 622, 626, 621 N.E.2d 194 (1993). We also note that defendant's roleas "security" was the same whether Wolf or the unknown drug dealer wastargeted. Defendant's participation in the committed offense was identical tothe participation that he agreed upon for the crime of burglary or robbery.

The trial court here stated in its ruling: "I believe in this case weare looking at something that is more than a mere presence; that there was anagreement for the armed robbery." The court continued:

"Although I don't believe there was an agreement to go toward themurder, this was a--was a reasonable belief this could be a possibility,since the gun was involved. And the mere fact that proceeds are nottaken from the robbery is not sufficient to provide the position,because there is no indication there was an effort to stop the crime orreport it."

In reaching its ruling, the trial court relied on People v. Perez, 189Ill. 2d 254, 725 N.E.2d 1258 (2000), People v. Kessler, 57 Ill. 2d 493, 498-99, 315 N.E.2d 29 (1974), People v. Terry, 99 Ill. 2d 508, 512, 460 N.E.2d 746(1984), and People v. Batchelor, 171 Ill. 2d 367, 665 N.E.2d 777 (1996).

In Perez, the defendant was convicted of first degree murder based onaccountability. In that case, the defendant did not know the shooter, did notknow of the ongoing dispute and prior altercations between the shooter and thevictim and did not know that anyone at the scene had a gun. The IllinoisSupreme Court reversed defendant's first degree murder conviction afterholding that he did not share the criminal intent of the principal. Perez,189 Ill. 2d at 267. The court reasoned that, while the defendant was presentat the scene, knew of its commission and fled the scene, the evidence was notsufficient to prove that he intentionally aided in or encouraged the crime'scommission. Perez, 189 Ill. 2d at 268.

In Kessler, the defendant waited in an automobile outside a tavern whilehis two companions entered into a building to commit burglary. While inside,one of the burglars shot and wounded the tavern owner and one of them fired ashot at a police officer. Defendant was found guilty of burglary andattempted murder. The Supreme Court held that the record showed a commondesign to commit a robbery or burglary. Kessler, 57 Ill. 2d at 498. In thatcase, the defendant "sat in on the plan" with two other individuals and ledthose individuals to the tavern. Kessler, 57 Ill. 2d at 498. The burglarywas the offense that the three men had jointly planned and were jointlycommitting, which resulted in attempted murder. Kessler, 57 Ill. 2d at 499. Therefore, the court held that each was legally accountable for the conduct ofthe other in connection therewith. Kessler, 57 Ill. 2d at 499.

In Terry, the defendant was found guilty of murder and armed violence,based on accountability. The evidence showed that the "substantive offensewhich the group conspired to commit was battery." Terry, 99 Ill. 2d 515. Thecourt reasoned that "each person was therefore responsible for the conduct ofthe other which was done in furtherance of the intended battery." Terry, 99Ill. 2d 515. The result of their acts was murder, and under the common designrule, all are legally accountable for that murder. Terry, 99 Ill. 2d 515.

In Batchelor, another case relied upon by the trial court, the evidenceshowed that the defendant was in the principal offender's presence during therobbery and stabbing of a 69-year-old woman and had knowledge of the robber'scriminal purpose of robbery "from the beginning." Batchelor, 171 Ill. 2d at377. The court noted that the defendant assisted in the commission of theoffense by acting as a lookout and sounding an alarm that the police were inthe area, despite seeing the victim struggle with the principal and hearingthe victim's pleas for help. Defendant fled the scene, did not report theincident, and met with the principal offender after the offenses werecommitted and received part of the cash taken from the victim's purse. Thecourt observed that the trial court expressly rejected part of defendant'scourt-reported statement, which it is permitted to do. Defendant's convictionwas affirmed, reasoning that a common criminal purpose existed before andduring the commission of the offenses. Batchelor, 171 Ill. 2d at 377.

In the case at bar, a burglary or robbery was the offense that the threemen jointly planned, defendant spent 30 to 45 minutes planning the crime,defendant's car was used "because it was dark and nobody knew that car,"defendant accompanied Woods and Wolf to a secondary location in furtherance ofthe plan, defendant took his place in the car as "security" once Woods andWolf exited the car and after the shooting, he hid the murder weapon. Accordingly, defendant is responsible for the conduct of any one of hiscohorts that is done in furtherance of the intended robbery or burglary. Theresult of Woods' actions was murder, and under the common design rule,defendant is legally accountable for that murder.

"Once an underlying common design to commit a planned offense isestablished, no additional common designs need be established for all of theindividual acts committed during the commission of the planned offense."(Emphasis omitted.) People v. McClain, 269 Ill. App. 3d 500, 505, 645 N.E.2d585 (1995). In order to convict a defendant under accountability, the Statemust show that the defendant, either before or during the commission of theoffense, intentionally aided or abetted an offender in conduct thatconstitutes an element of an offense. Taylor, 186 Ill. 2d at 447, citingPeople v. Dennis, 181 Ill. 2d 87, 101, 692 N.E.2d 325 (1998). A convictionshould not be set aside on grounds of insufficient evidence unless the proofis so improbable or unsatisfactory that a reasonable doubt exists about thedefendant's guilt. Perez, 189 Ill. 2d at 266. In our view, defendant herewas properly held accountable for Wolf's murder based upon his conduct beforethe robbery and after the murder and we cannot say that the defendant'sstatement and other evidence are so unsatisfactory that a reasonable doubtexists as to defendant's guilt. V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next contends that his trial counsel was ineffective, wheretrial counsel failed to call certain witnesses who would have allegedlycorroborated his testimony and alibi. Defendant asserts that there is astrong probability that the outcome of this case would have been different hadhis trial counsel called Jacqueline Husband and Marilyn Hardy. The Statemaintains that defendant received effective assistance of counsel where therewas no evidence in the record to support the notion that there were"disinterested" witnesses who could offer exculpatory testimony on defendant'sbehalf. In distinguishing the cases relied upon by defendant, the Stateargues that the court does know what these witnesses would have said, andtherefore, defendant cannot overcome the presumption that defense counsel'sdecision was based on trial strategy.

Under the standards enunciated by the United States Supreme Court inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052(1984), a claim of ineffective assistance of counsel will be sustained ifcounsel has failed to perform in a reasonably effective manner and there is areasonable probability that, but for this substandard performance, the outcomeof the proceeding would have been different (adopted by Illinois in People v.Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984)).

To show a deficiency, a defendant must overcome the strong presumptionthat counsel's action or inaction was the product of sound trial strategy. People v. Richardson, 189 Ill. 2d 401, 411, 727 N.E.2d 362 (2000). To showprejudice, a defendant must prove that there is a reasonable probability that,but for counsel's unprofessional errors, the result of the proceeding wouldhave been different. Richardson, 189 Ill. 2d at 411. Both prongs of the test,deficiency and prejudice, must be shown to establish the ineffectiveassistance of counsel, and the failure to establish either of these will befatal to a defendant's claim. Richardson, 189 Ill. 2d at 411.

Although an attorney's decision regarding whether or not to present aparticular witness is generally a matter of trial strategy, counsel may bedeemed ineffective for failure present exculpatory evidence of which he or sheis aware, including the failure to call witnesses whose testimony wouldsupport an otherwise uncorroborated defense. People v. Tate, 305 Ill. App. 3d607, 612, 712 N.E.2d 826 (1999) (defendant's postconviction petition includedaffidavits of three alibi witnesses); see People v. Skinner, 220 Ill. App. 3d479, 485, 581 N.E.2d 252 (1991) (affidavits of defendant's mother and step-father corroborated defendant's testimony).

In the instant case, defendant merely speculates as to the contents ofthe potential witnesses' testimony. He does not have any affidavits or otherevidence that would support a claim of ineffective assistance of counsel forfailure to call witnesses whose testimony would support an otherwiseuncorroborated defense. Defendant has not demonstrated that his trial counselfailed to perform in a reasonably effective manner and he has not demonstratedthat there is a reasonable probability that, but for this alleged substandardperformance, the outcome of the proceeding would have been different.

VI. CONCLUSION

For the foregoing reasons, we affirm defendant's conviction for murderbased upon accountability. Also, we grant the State's request for fees in theamount of $100 for defending this appeal.

Affirmed.

GORDON, P.J., and SMITH, J., concur.