People v. Cowart , 2017 IL App (1st) 113085 ( 2017 )

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Appellate Court Date: 2017.08.22
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People v. Cowart, 2017 IL App (1st) 113085-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CHARLES COWART, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-11-3085
Filed May 12, 2017
Rehearing denied June 16, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-13763; the
Review Hon. Thaddeus L. Wilson, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Remanded for resentencing.
Counsel on Michael J. Pelletier, Patricia Mysza, and Christopher L. Gehrke, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, and Miles J. Keleher, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Connors and Delort concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, defendant Charles Cowart was
convicted of first degree murder under a theory of accountability. Following a simultaneous
bench trial outside the presence of the jury, defendant was also convicted of being an armed
habitual criminal (AHC). Subsequently, the trial court sentenced him to 51 years of
imprisonment for first degree murder and a concurrent 20-year sentence for the AHC
conviction. On appeal, this court reversed both the first degree murder conviction and the AHC
conviction. Our supreme court then issued a supervisory order directing us to reconsider that
judgment in light of its decision in People v. McFadden, 2016 IL 117424. Having done so, we
now affirm the defendant’s AHC conviction, reverse the defendant’s first degree murder
conviction, and remand for resentencing.
¶2 BACKGROUND
¶3 On June 21, 2009, in the late evening, victim Lee Floyd (Lee) was shot and killed at an
outdoor party located at West Van Buren Street and South Keeler Avenue in Chicago, Illinois.
On June 26, 2009, police officers arrested defendant, who was subsequently charged with the
first degree murder of Lee, the offense of being an AHC, and aggravated discharge of a
firearm. Defendant asserted in his videotaped statement to the police that one of his friends,
Keevo,1 accidentally shot Lee during the party. Prior to trial, on June 20, 2011, the State
decided to proceed with the first degree murder and AHC charges but nol-prossed the
remaining charges.
¶4 On June 21, 2011, the same day a bench trial commenced on the AHC charge, a jury trial
commenced on the first degree murder charge. Tytianna Johnson (Tytianna) testified on behalf
of the State that, at about 10:30 p.m. on June 21, 2009, she, Iesha Parker (Iesha), Keyana
Williams (Keyana), and Elaina Riley (Elaina) attended a Father’s Day outdoor celebration in
the area of West Van Buren Street and South Keeler Avenue in Chicago. Tytianna estimated
that about 200 people attended the party, including Jasmine Benson (Jasmine) and defendant,
whose nickname was “LC.” Tytianna noticed a group of “boys standing around” with
defendant, including an individual nicknamed “Bird,” which she described as the “LC crew.”
Tytianna noticed that defendant had a gun tucked into his waistband, that he wore a white
T-shirt bearing a photograph of someone, and that the “[m]ajority of the whole party” wore the
same shirt. Although Tytianna testified at trial that she did not see Bird with a gun, she had
previously informed the grand jury and an assistant State’s Attorney that Bird had a gun at the
party. At some point, Jasmine and Ashley Dockery (Ashley) got into a verbal argument while
Tytianna and Ashley’s boyfriend, Tommy, stood nearby. About 7 to 10 minutes later, “a whole
crowd of boys” stood in front of Tytianna, Iesha, Keyana, and Elaina. The group of about 20
boys included defendant, Bird, “Smooth,” and the victim, Lee. Elaina then made a statement,
which caused the “whole party” to get “real rowdy” and to turn against the girls. Smooth then
threw a drink in Iesha’s face, and defendant slapped Iesha. Elaina then hit defendant, who then
hit Elaina, and she fell to the ground. The crowd then started “going crazy,” and everyone was
“swinging.” Ralph Benson (Ralph), who was the father of Tytianna’s children, then physically
pulled Tytianna out of the fight. Moments later, Tytianna heard gunshots and observed “Pooh
1
The spelling of this individual’s name varies in the record as “Keevo” or “Kevo.”
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Bear” shooting a gun in the air. Tytianna and Ralph then hid under a parked truck on the corner
of the street. During the incident, Tytianna heard a total of about 25 to 30 gunshots fired from
four or five different guns and heard the boys yell, “[s]hoot them ho’s, [s]hoot them ho’s.”
Several days later, on June 27, 2009, Tytianna cooperated with the police and identified
photographs of the males she saw at the party, including Pooh Bear, Tommy, and Bird, and she
also identified defendant in a physical lineup. On cross-examination, Tytianna was impeached
with her grand jury testimony, which stated that “[m]ost of the males” she saw at the party had
guns in their possession.
¶5 Iesha testified that at about 10 p.m. on June 21, 2009, she, Tytianna, Keyana, and Elaina
attended an outdoor party in the playground of an elementary school at West Van Buren Street
and South Keeler Avenue. Iesha estimated about 50 to 100 people in attendance, and
partygoers stood on the sidewalks, yard, and streets. Iesha saw Tommy, Pooh Bear, Keevo,
Melissa Meridy (Melissa), and Jasmine at the party. Jasmine engaged in an altercation with
Ashley, after which Tommy walked to Jasmine and Melissa on the street corner, said
something to them, and walked back toward the elementary school grounds. Elaina then said
something to Pooh Bear, which caused “all the guys out there” to walk toward the girls who
were on the street corner at West Van Buren Street and South Keeler Avenue at that time. Iesha
knew that something was about to happen and started to leave when Smooth or Suavo threw a
drink in her face. Defendant then struck Iesha in the face, after which Elaina and defendant
engaged in a physical altercation. Iesha described the scene as “[e]veryone just got fighting.”
When gunshots rang out, Iesha fled southbound on South Keeler Avenue toward a bridge
leading to Harrison Street. As she fled, she continued to hear about six or seven gunshots,
looked back and saw Elaina fall down, and saw defendant shooting over the bridge at them
from the corner of the elementary school. After she reached Harrison Street, Iesha hid under a
porch for about 20 minutes. On June 27, 2009, Detective Garcia came to Iesha’s home and
brought her to the police station, where she identified photographs of Keevo, Bird, Suavo,
Tommy, and Pooh Bear. Iesha also identified defendant in a physical lineup and in a statement
to an assistant State’s Attorney as the person who had shot at her.
¶6 Peggy Allen (Peggy) testified that she lived in a first-floor apartment near the intersection
of West Van Buren Street and South Keeler Avenue at 4158 West Congress Parkway. In the
early morning of June 22, 2009, Peggy awoke to the sounds of gunshots close to her apartment.
She looked out the window onto South Keeler Avenue and observed two girls running
southbound toward West Congress Parkway and ducking between cars as a young man
followed and shot at them. A group of people also followed behind the shooter as the shooter
followed the girls. The gunman shot at the girls at least six times—three times before Peggy
looked out the window and three times as she watched the incident unfold. After the shooting,
Peggy discovered bullet holes in her windows, the dining room, and the kitchen. The next day,
Peggy spoke with the police and showed them the damage to her home. Police officers
recovered bullets and photographed the damage caused by the gunfire to her residence.
¶7 Melissa testified that at about 8 p.m. on June 21, 2009, she and Jasmine attended the
barbecue party in an elementary school yard in the area of West Van Buren Street and South
Keeler Avenue. Defendant, who wore a T-shirt with a picture on it, was at the party. At some
point during the party, Melissa, who was standing in the middle of the street on West Van
Buren Street, saw a fight on the corner of West Van Buren Street and South Keeler Avenue.
Melissa observed Suavo hit Elaina. Tytianna’s boyfriend then picked Tytianna up off the
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ground at the corner of West Van Buren Street and South Keeler Avenue. As the fight broke
out, Melissa telephoned a friend. After the telephone call, Melissa approached the corner
where the fight was occurring and heard about nine gunshots. However, she did not see who
was firing the shots. Melissa ducked behind cars as she fled and headed home. On June 28,
2009, Melissa went to the police station and identified defendant, Pooh Bear, Keevo, Tommy
and Suavo in a photographic array as individuals who were present at the party. Melissa also
informed the police that she had observed Pee Wee flashing a gun before the fight occurred at
the party.
¶8 Roceaser Ivy (Roceaser) testified that he met defendant in 2006 and that he came into
contact with defendant again in 2008. At trial, Roceaser initially denied that he was ever in the
area of West Van Buren Street and South Keeler Avenue on the evening of June 21, 2009, or
the early morning hours of June 22, 2009. He denied witnessing defendant’s involvement in a
shooting at that location. Although Roceaser was impeached at trial with his prior statements to
the police, the assistant State’s Attorney, and the grand jury, in which he said that he had
observed defendant shooting a gun on the night of the party, Roceaser testified at trial that he
had lied to the authorities and the grand jury because the police had threatened to take his
parole away.2
¶9 Assistant State’s Attorney George Canellis (ASA Canellis) testified that on July 2, 2009,
he met with Roceaser, who informed ASA Canellis of the details of the shooting. ASA
Canellis testified as to Roceaser’s testimony before the grand jury, which was published to the
jury at trial. In his grand jury testimony, Roceaser testified that, after midnight on June 22,
2009, he was walking down South Keeler Avenue near West Van Buren Street and was trying
to buy marijuana. Roceaser estimated that there were about 300 to 400 people outside
“celebrating something.” As he walked on South Keeler Avenue toward West Van Buren
Street, Roceaser saw defendant fire a gun and saw “fire jump from his hand.” When the
shooting began, Roceaser was walking on the east side of South Keeler Avenue and was two
sidewalk “squares” from West Van Buren Street while defendant was standing diagonally
across the street next to an elementary school on the southwest corner of the intersection. A
crowd of people stood behind defendant. Roceaser informed the grand jury that he had no
difficulty observing defendant at the time of the shooting because lighting from the school
building shone on defendant. Defendant was wearing a white T-shirt, blue jeans, white tennis
shoes, and a white hat. Roceaser’s grand jury testimony stated that he heard no gunshots prior
to defendant’s firing the gun, that defendant had extended his arm and was shooting at
somebody rather than up in the air, and that Roceaser initially heard at least five or six shots
and fled toward public transportation at West Van Buren Street and Pulaski Road. Roceaser
could still hear gunshots as he fled, which became quieter as he got farther away. In his grand
jury testimony, Roceaser also stated that he was treated fairly by the police, that the police did
not make any threats or promises to him in exchange for his statement, and that ASA Canellis
never made any promises to him regarding his parole status.
¶ 10 At the time of trial, the State called former Assistant State’s Attorney Jenni Scheck
(Scheck) who testified that on July 1, 2009, she and Detective Garcia met with Roceaser and
had a conversation with him about the details of the shooting, which was then memorialized in
2
At the time of trial, Roceaser was in federal custody on an unrelated drug charge and had
previously been convicted of other felony offenses.
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a typewritten statement. At some point during the conversation, Scheck questioned Roceaser
alone in the police interview room, and Roceaser never indicated that either Detective Garcia
or other police officers threatened to revoke his parole unless he agreed to speak with them.
Scheck testified that Roceaser was given the opportunity to make changes and corrections to
the statement and that he attested to the accuracy of the statement by signing the bottom of
each page. During Scheck’s trial testimony, the typewritten statement was admitted into
evidence and published before the jury. The typewritten statement of Roceaser stated that after
midnight on June 22, 2009, he was looking to buy some marijuana in the area of South Keeler
Avenue and West Van Buren Street. As Roceaser headed southbound on South Keeler Avenue
near West Van Buren Street, he saw defendant standing across the street near a school at the
southwest corner of the intersection. Defendant, who was wearing white tennis shoes, blue
jeans, a white T-shirt, and baseball hat, stood under a light emanating from the school building.
Roceaser stated that defendant was “with some other people but seemed to be a step ahead of
the group.” There were also “groups of 15 to 20 people and a bigger group behind the school.”
Roceaser then observed defendant with a gun in his hand and heard two gunshots. Roceaser
saw “fire” come out of defendant’s hand as he discharged his weapon “in the direction where
other people [were] standing.” Roceaser stated that defendant “definitely shot the gun towards
people and not up into the air,” that he did not hear any gunshots before defendant fired the
gun, and that Roceaser then fled upon seeing defendant shoot his gun. After he started running,
Roceaser heard other gunshots, which grew fainter as he got farther away. Roceaser also stated
in the typewritten statement that he was treated well by the detectives and Scheck, that he was
given food by the police, that he was allowed to use the restroom whenever he needed to, that
he was not handcuffed at any time at the police station, and that no threats or promises had
been made to coerce him to make a statement, that he gave the statement freely and voluntarily,
that he was allowed to make any changes or corrections to his statement, that he put his initials
by the changes or corrections that were made, and that everything contained in the statement
was true and accurate.
¶ 11 Officer Kevin Ebersole (Officer Ebersole) testified that at 12:30 a.m. on June 26, 2009,
several days after the shooting, he and his partner, Officer Suing, were on routine patrol when
they received a radio flash message of a vehicle and occupant who had been involved in an
incident at Lake Street and Homan Avenue. About a minute later, as the officers headed
southbound on Homan Avenue, Officer Ebersole spotted the vehicle matching the description
in the flash message. Once the police stopped the vehicle, the front passenger exited the vehicle
with a “nickel or chrome-plated” handgun in his hand and thereafter placed the gun into his
waistband. At trial, Officer Ebersole identified defendant as the individual he observed exiting
the vehicle. Officer Ebersole testified that defendant exited the vehicle and fled westbound on
Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer Ebersole
observed defendant throw the handgun onto the roof of a garage near 512 North Trumbull
Avenue. Moments later, Officer Ebersole apprehended defendant. Other police officers then
recovered the handgun from the roof of the garage where defendant had tossed it.
¶ 12 Officer Nick Beckman (Officer Beckman) testified that on June 26, 2009, he arrived at the
500 block of North Trumbull Avenue and spoke with police officers who were already at the
location. He was directed by other officers to the roof of a garage at 512 North Trumbull
Avenue, where he recovered a 9-millimeter semiautomatic handgun with a chrome finish. The
handgun’s magazine was empty, and Officer Beckman inventoried the weapon. Evidence was
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presented by the State at trial that subsequent testing of the handgun showed that it matched
three cartridge cases that were recovered from the June 21, 2009, shooting crime scene near
407 South Keeler Avenue.
¶ 13 Detective Gregory Jones (Detective Jones) testified that he investigated the shooting death
of Lee. On June 26, 2009, Detective Jones interviewed Roceaser, who identified defendant in a
physical lineup as the person who had fired a handgun during the shooting melee on June 21,
2009. On June 27, 2009, Detective Jones also interviewed Iesha, Tytianna, and Keyana.
Tytianna identified defendant in a physical lineup as a person she saw “involved in a fight just
prior to the shooting and also a person she saw with a handgun in his waistband before the
shooting.” Tytianna also identified Tommy and Pooh Bear in a photographic array. Iesha
viewed the physical lineup separately and also identified defendant as “the person who had
punched her in her face with his fists and then fired multiple shots at her as she ran.” Iesha
further identified Bird, Pooh Bear, Tommy, and Suavo in a photographic array. On June 28,
2009, Detective Jones also interviewed Melissa, who identified Pee Wee, Suavo, Tommy,
Keevo, Pooh Bear, Bird, Elaina, Iesha, Lee, Roceaser, Smooth, Fish, Lil One, Chris Rock
(Rock), D-Mac, and defendant in a photographic array. Melissa informed Detective Jones that
she had seen Pee Wee with a gun prior to the fight, and that Tommy had made threats to shoot
anybody who “touches his girl.” On June 29, 2009, Detective Jones and his partner also
interviewed Ashley, who identified Lee, Melo, Rock, Tommy, Keevo, Pooh Bear, Smooth,
Pee Wee, and defendant as being present at the party at the intersection of West Van Buren
Street and South Keeler Avenue on June 22, 2009. However, Ashley was not present at the
time of the shooting. On July 1, 2009, Detective Jones reinterviewed Roceaser. Detective
Jones testified that Roceaser was not placed under arrest or in handcuffs, that no threats were
made to him regarding his parole status, that an assistant State’s Attorney memorialized a
statement made by Roceaser, and that Roceaser testified before the grand jury on July 2, 2009.
Detective Jones testified that, in the course of his investigation, he had evidence that “there
were multiple people shooting” at the street corner of West Van Buren Street and South Keeler
Avenue. On July 6, 2009, Detective Jones conducted another physical lineup with Iesha and
Tytianna, from which Iesha identified Tavaris Hightie (Tavaris) as “being at the scene with a
gun” and Tytianna identified Tavaris as “one of the people actually shooting a gun.” During
Detective Jones’s testimony at trial, defendant’s videotaped statement to the police was
published to the jury.
¶ 14 In his videotaped statement, defendant stated that he helped organize the Father’s Day
celebration for one of his “homies,” Boodro, who died eight years earlier. Defendant and many
partygoers wore T-shirts with Boodro’s picture on the front. The party included food, drinks, a
D.J., and a photographer and was located in a schoolyard at West Van Buren Street and South
Keeler Avenue. The party was going smoothly until some “females” started to get into a fight
with each other, and Bird tried to resolve the dispute by telling a female individual to “get the
[expletive] on.” Defendant described what unfolded next. Defendant stated that he slapped the
female at the corner of West Van Buren Street and South Keeler Avenue, because she was
“talking crazy.” According to defendant, the “baby daddy” of the woman he had slapped then
“hit [defendant’s] homie, Smooth.” Defendant did not know the identity of the “baby daddy.”
Defendant stated that when the “baby daddy” hit Smooth, defendant and all of his friends,
including Smooth, Marvin, Lee (the victim), Keevo, and Big Greek surrounded the man.
Defendant stated that when they had “baby daddy” surrounded in a circle, Keevo said, “watch
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out, I’m [fittin] to kill this bitch.” Defendant then heard the first gunshot and saw people move
back. At that time, Keevo was facing West Van Buren Street and South Keeler Avenue, while
the victim, Lee, had his back turned toward that intersection and was facing West Congress
Parkway and South Keeler Avenue instead. When the second gunshot sounded, defendant
claimed that he saw Lee “roll over on the ground,” but defendant did not know at the time that
Lee had been shot. Defendant claimed that Keevo accidentally shot Lee when Keevo was
trying to “get this bitch.” When a third gunshot sounded, defendant heard “all the bullets ***
going towards the bridge” near West Congress Parkway, in the direction where “two girls”
were running as the shooting began. When asked who was shooting, defendant answered,
“Kevo shot first. [Pooh] Bear shot. Pee Wee shot. *** I had my gun out[,] Bird had his gun
out.” However, defendant denied that either he or Bird fired their weapons but stated that “I
had a nine. Bird had a nine. Basically it was a lot of nine’s out there it was a few .357
[revolvers].” Defendant noted that he had been shot on multiple occasions in the past and, thus,
took his gun out once the shooting began. Defendant stated that “baby daddy” was able to
escape by running away. He noted that “baby daddy” got away because once gunshots were
heard, “everyone out there wasn’t focused.” Defendant denied walking with the crowd that
followed and shot at the girls who were running toward the bridge. Instead, he claimed that he,
Bird, Smooth, and Pee Wee put Lee into Smooth’s car, and Smooth drove Lee to the hospital.
Defendant claims that he ran to Gladys Avenue to get away from West Van Buren Street and
South Keeler Avenue because the police were coming and he still had the gun in his
possession. Defendant then gave the gun to someone named “Melva.” He did not find out that
his “homie” Lee had died until the following morning. Defendant claimed that the handgun
that the police recovered from his person several days after the shooting was a different firearm
than the one he had in his possession during the shooting.
¶ 15 At trial, after defendant’s videotaped statement was played for the jury, Detective Jones
testified on cross-examination that, based on his interviews with the witnesses, Lee was
standing on the street near the southwest corner of the intersection of West Van Buren Street
and South Keeler Avenue when he was shot. Detective Jones estimated that, at the time Lee
was shot, there were “several people” directly around him and “a couple hundred people” at
the party, and there were several handguns that had been fired at the time Lee was shot. On
redirect, Detective Jones testified that the police had not recovered any firearms other than the
gun that was recovered from defendant.
¶ 16 Evidence was presented at trial that the police found shell casings and blood at the crime
scene. Evidence technicians located and recovered 26 shell casings, a fired bullet, and a bullet
jacket from the crime scene, which led Tonia Brubaker (Brubaker), a forensic scientist, to
conclude that at least 28 gunshots from six or seven different firearms had been fired at the
scene—including two .38-caliber firearms, four 9-millimeter firearms, and one unknown
firearm. Stephen Balcerzak (Balcerzak), an evidence technician, also testified that revolvers do
not expel shell casings and, thus, would not leave such evidence behind.
¶ 17 The State, outside the presence of the jury, also introduced into evidence two certified
copies of defendant’s previous convictions: the first was a certified copy of a January 9, 2007,
felony conviction for possession of a controlled substance with intent to deliver, in violation of
section 401(d)(i) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d)(i)
(West 2006)) (case No. 06 CR 2687101); the second was a certified copy of a February 1,
2002, felony conviction for aggravated unlawful use of a weapon, in violation of section
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24-1.6(a)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.6(a)(1) (West
2002)) (case No. 01 CR 1233801).
¶ 18 By stipulation, the parties agreed that Dr. Tera Jones (Dr. Jones) performed the autopsy of
Lee’s body. Dr. Jones observed a gunshot entrance wound on his right upper back, and the exit
wound on his right upper chest. The bullet traveled from “back to front slightly right to left and
upward.” Examination of the skin around the entrance wound revealed no evidence of
close-range firing, which typically occurs when the firearm is less than 18 inches from the
victim. The parties stipulated that Dr. Jones would testify within a reasonable degree of
medical and scientific certainty that the cause of death was due to a gunshot wound on Lee’s
back and the manner of death was homicide.
¶ 19 After the State rested, three witnesses testified on behalf of defendant. Antonio Williams
(Antonio) is defendant’s nephew and was about 14 years old at the time of the shooting. Rekia
Williams (Rekia) is Antonio’s mother. Tiana Cowart (Tiana) is defendant’s wife. Antonio,
Rekia, and Tiana testified that they saw defendant fighting with some women when they heard
the first gunshots at the Father’s Day party. Antonio testified that once the fight broke out,
“everybody started fighting.” Antonio testified that, before the shots were fired, Lee was
standing on the sidewalk by the entrance door of the elementary school, which was about 15
feet away from the corner of West Van Buren Street and South Keeler Avenue. Antonio did
not see Lee get struck by a bullet but only saw him fall to the ground. All three witnesses
testified that they neither saw defendant in possession of a gun nor fire a weapon and that they
fled the scene shortly after they heard the gunshots. Rekia and Tiana also testified that
defendant wore a sling on one of his arms on the night of the shooting.
¶ 20 During jury deliberations and outside the presence of the jury, the trial court conducted a
simultaneous bench trial and found defendant guilty of being an AHC. Following
deliberations, the jury found defendant guilty of first degree murder of Lee and found that he
personally discharged a firearm.
¶ 21 On September 23, 2011, the trial court denied defendant’s motion for a new trial. The trial
court then sentenced defendant to 51 years of imprisonment, which included a 20-year firearm
enhancement, and the court imposed a concurrent 20-year sentence for the AHC conviction.
On September 30, 2011, the trial court denied defendant’s motion to reconsider the sentence.
Defendant then appealed.
¶ 22 On February 9, 2015, this court reversed both of defendant’s convictions. People v.
Cowart, 2015 IL App (1st) 113085. In reversing the first degree murder conviction, we held
that “the State failed to prove beyond a reasonable doubt that there was a common criminal
design between defendant and Lee’s killer, so as to establish defendant’s intent to promote or
facilitate the crime.” Id. ¶ 38. In reversing the AHC conviction, we held that the State failed to
prove the predicate offenses for AHC because defendant’s prior conviction for aggravated
unlawful use of a weapon (AUUW) was based on a statute found to be unconstitutional in
People v. Aguilar, 2013 IL 112115. Cowart, 2015 IL App (1st) 113085, ¶ 47.
¶ 23 In September 2016, our supreme court issued a supervisory order directing us to vacate our
February 9, 2015, judgment and to reconsider that judgment in light of its decision in People v.
McFadden, 2016 IL 117424. Both defendant and the State submitted supplemental briefs.
Having reconsidered in accordance with the supreme court’s mandate, we now affirm the
defendant’s AHC conviction, reverse the defendant’s first degree murder conviction, and
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remand for resentencing.
¶ 24 ANALYSIS
¶ 25 We note that we have jurisdiction as defendant filed a timely notice of appeal following a
final order pursuant to Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014).
¶ 26 We determine the following issues on appeal: (1) whether the State established beyond a
reasonable doubt that defendant committed first degree murder under a theory of
accountability, (2) whether the State established beyond a reasonable doubt that defendant
committed the offense of AHC in light of McFadden, and (3) whether the trial court erred in
imposing a 20-year firearm enhancement sentence on defendant’s first degree murder
conviction.
¶ 27 We first determine whether the State established beyond a reasonable doubt that defendant
committed first degree murder on a theory of accountability.3
¶ 28 As a preliminary matter, defendant points out in his reply brief that the State’s response
brief makes various references to gang evidence, which had not been presented at trial, and
asks that this court strike or ignore these gang-related references. We agree that the State’s
original brief makes gang-related references from portions of the transcript of defendant’s
videotaped statement that was not played for the jury. However, in December 2014, this court
granted the State leave to file a corrected brief, which removed from the brief all gang-related
references that were not admitted at trial. The corrected brief did not make any substantive
changes to the State’s arguments regarding the issues on appeal. Also, in the interest of judicial
economy, this court will treat defendant’s reply brief to the State’s original response brief as a
reply brief to the State’s corrected brief.
¶ 29 Defendant argues that his conviction should be reversed because the State failed to prove
beyond a reasonable doubt that he committed first degree murder under a theory of
accountability, where the shooter was unknown and the weapon that was used to kill Lee was
unknown. Even if the State’s evidence could be believed, he contends, it only showed that
defendant was shooting at Iesha and her friends, while Lee was nowhere in sight. Defendant
argues that the State failed to present the testimony of any witnesses who saw “anyone else
shoot at [Iesha] before [Lee] was shot,” that the State failed to present any facts that connected
defendant’s friends to the fatal bullet, and that the physical evidence implicated numerous
unknown potential shooters. He contends that instead of charging defendant for a crime against
Iesha, the State “overcharged” him with the first degree murder of Lee on a theory of
accountability. Specifically, defendant claims that, even viewing the evidence in the light most
favorable to the State, the evidence was insufficient to prove beyond a reasonable doubt, all of
the elements of the theory of accountability.
¶ 30 The State counters that defendant was proven guilty beyond a reasonable doubt of first
degree murder under a theory of accountability. Specifically, the State argues that defendant
3
The issue of first degree murder in this case is outside the scope of the supreme court’s supervisory
order, as the McFadden decision has no bearing on the first degree murder conviction. While we are not
precluded from reconsidering issues outside the scope of the mandate, the State does not provide any
new arguments in support of a first degree murder conviction. See, e.g., People v. Warren, 2016 IL App
(1st) 090884-C. Therefore, our analysis on this issue is unchanged from our February 9, 2015, vacated
judgment.
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was properly convicted of the offense because he and his friends participated in a common
criminal design that resulted in Lee’s death. The State further argues that other factors, such as
defendant’s presence during the commission of the crime, his flight from the scene, his failure
to report the incident, and his continued association with the other offenders after the shooting,
all showed that defendant was accountable for Lee’s death.
¶ 31 When the sufficiency of the evidence is challenged on appeal, we must determine
“ ‘whether, after viewing the evidence in the light most favorable to the [State], any rational
trier of fact could have found the essential elements of the crime beyond the reasonable
doubt.’ ” (Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great
deference to the trier of fact and does not retry defendant on appeal. People v. Smith, 318 Ill.
App. 3d 64, 73 (2000). It is within the province of the trier of fact “to assess the credibility of
the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or
inconsistencies in the evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not
required to accept any possible explanation compatible with defendant’s innocence and elevate
it to the status of reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A
reviewing court will not substitute its judgment for that of the trier of fact. People v.
Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing court must allow all reasonable
inferences from the record in favor of the State. People v. Cunningham, 212 Ill. 2d 274, 280
(2004). A criminal conviction will not be reversed “unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt.” Graham, 392 Ill.
App. 3d at 1009.
¶ 32 A person commits first degree murder when, in performing the acts which cause the death
of an individual, (1) he either “intends to kill or do great bodily harm to that individual or
another, or knows that such acts will cause death to that individual or another” or (2) “he
knows that such acts create a strong probability of death or great bodily harm to that individual
or another.” 720 ILCS 5/9-1(a)(1), (2) (West 2008); People v. Jones, 376 Ill. App. 3d 372, 383
(2007).
¶ 33 At trial, the State prosecuted its case against defendant for first degree murder under a
theory of accountability. A person is legally accountable for the criminal conduct of another
when “[e]ither before or during the commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person
in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2008).
¶ 34 To prove that a defendant had the intent to promote or facilitate the crime, the State must
present evidence that establishes, beyond a reasonable doubt, “that (1) defendant shared the
criminal intent of the principal or (2) there was a common criminal design.” People v. Willis,
2013 IL App (1st) 110233, ¶ 79. In the case at bar, the State does not argue that defendant
shared the criminal intent of the person who shot Lee. Rather, the State advanced its case on
the theory that there was a “common criminal design” by which defendant showed the intent to
promote or facilitate the killing of Lee. The common design rule holds that “where two or more
persons engage in a common criminal design or agreement, any acts in the furtherance of that
common design committed by one party are considered to be the acts of all parties to the design
or agreement and all are equally responsible for the consequences of the further acts.” In re
W.C., 167 Ill. 2d 307, 337 (1995). “Words of agreement are not required to prove a common
design or purpose between codefendants; a common design may be inferred from the
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circumstances surrounding the crime.” Willis, 2013 IL App (1st) 110233, ¶ 79. “Evidence that
a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its
design supports an inference that he shared the common purpose and will sustain his
conviction for an offense committed by another.” In re W.C., 167 Ill. 2d at 338. “A conviction
under accountability does not require proof of a preconceived plan if the evidence indicates
involvement by the accused in the spontaneous acts of the group.” People v. Cooper, 194 Ill.
2d 419, 435 (2000). “In determining a defendant’s legal accountability, the trier of fact may
consider defendant’s presence during its commission, defendant’s continued close association
with other offenders after its commission, defendant’s failure to report the crime, and
defendant’s flight from the scene.” Willis, 2013 IL App (1st) 110233, ¶ 79. “ ‘Absent other
circumstances indicating a common design, presence at the scene and flight therefrom do not
constitute prima facie evidence of accountability; however, they do constitute circumstantial
evidence which may tend to prove and establish a defendant’s guilt.’ ” Id. (quoting People v.
Foster, 198 Ill. App. 3d 986, 993 (1990)). A defendant may be found guilty under an
accountability theory even though the identity of the principal is unknown. Cooper, 194 Ill. 2d
at 435.
¶ 35 With regard to the intent element of accountability under the facts of this case, we find that
the State failed to establish that there existed a common criminal design between defendant
and the multitude of armed partygoers who participated in the shooting melee that ended in
Lee’s death. There was evidence that many men in the crowd, including, but not necessarily
limited to, defendant and his friends, were armed with guns. The scene was described as
chaotic once the shooting started. There is also evidence that Lee was alive when the shooting
started. In defendant’s videotaped statement, he claims that Keevo accidentally shot Lee. The
State never embraced that evidence. The State argued instead that Lee’s killer was unknown.
At trial, the State presented evidence that defendant and a “whole crowd of boys,” engaged in a
verbal and physical altercation with Iesha and her friends, including “baby daddy.” Moments
later gunfire erupted. It is unclear where that gunfire originated. The State’s evidence revealed
that at some point, defendant shot at Iesha and Elaina as they fled southbound on South Keeler
Avenue. It is unclear from the evidence when Lee was shot. Tytianna testified that she heard
about 25 to 30 gunshots fired from multiple guns during the melee and observed Pooh Bear
shooting a gun in the air. Trial testimony also established that there were hundreds of people at
the party and that many, if not most of the men, were armed with guns. There was no evidence
that the multitude of armed men were all members of defendant’s “crew.” There was also
evidence that at least 26 shell casings, a fired bullet, and a bullet jacket were found at the scene.
However, given the amount of shooting, it can be inferred that there were revolvers in the mix
as well. The State’s evidence technician, Balcerzak, testified that revolvers would not leave
behind shell casings after being fired. In other words, it is impossible to know how many guns
were at the party and who was firing them.
¶ 36 Defendant makes a reasonable argument that the State has not addressed satisfactorily.
Specifically, defendant argues that it is insufficient to show that multiple illegal acts occurred
in the same vicinity without showing the common link between or among the actors. In the
case at bar, a theory of accountability for Lee’s murder under these facts presented significant
evidentiary challenges for the State.
¶ 37 The State has conceded that its theory of accountability is not based on a common criminal
intent between the shooter and defendant. Therefore, the State was required to show that there
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was a common criminal design between defendant and the shooter who killed Lee. The State
was required to do so under the facts of this case. Consequently, defendant is able to make a
convincing argument that the State charged him with the wrong crime or “overcharged” him
with the murder of Lee.
¶ 38 It is undisputed that there was evidence that defendant fired shots at Iesha. Yet, that is not
the crime for which the State chose to charge and try defendant. Inexplicably, the State chose
to try defendant for the murder of Lee on a theory of accountability, when the evidence did not
provide proof of either a shared criminal intent (which is conceded) or a common criminal
design. We note that the State has complete discretion to determine the charge or charges that
will be levied against a defendant. It is also the State’s responsibility to ensure that the facts
and the proof required to meet the burden beyond a reasonable doubt are consistent with the
crime charged. In this case the State has failed to do so. Thus, at most, we find that the State’s
evidence showed that an unidentified person killed Lee but that defendant shot at Iesha and
Elaina. Therefore, in order to establish a “common criminal design,” the State must prove
beyond a reasonable doubt that the unknown shooter was a part of defendant’s alleged criminal
design to shoot Iesha and her friends but instead killed Lee while he was acting in furtherance
of the plan that he and defendant had in common. Although defendant claimed in his
videotaped statement that Keevo, Pooh Bear, and Pee Wee fired their guns in retaliation
against Iesha and her friends, those shots were described as being discharged after Lee had
already been shot and, thus, could not be a basis for proving accountability for the shooting.
See 720 ILCS 5/5-2(c) (West 2008) (a person is legally accountable for the criminal conduct of
another when, “[e]ither before or during the commission of an offense, and with the intent to
promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such
other person in the planning or commission of the offense” (emphasis added)). No evidence
was presented by the State that anyone other than defendant shot at Iesha or Elaina. Although
someone in the group of “boys” yelled, “[s]hoot them ho’s, [s]hoot them ho’s,” that person was
never identified and there was no evidence that any one in that group fired a gun. Aside from
defendant, the only other person identified by a witness at trial as having shot a gun was Pooh
Bear, who fired into the air. Thus, we find that the State could not prove beyond a reasonable
doubt that anyone belonging to defendant’s group of “homies” fired gunshots at Iesha and her
friends and shot Lee instead.
¶ 39 Even assuming, arguendo, that the State’s evidence did show that other persons
participated in defendant’s criminal design to shoot Iesha and her friends, no direct or
circumstantial evidence established that any one of those participants was the shooter who
killed Lee. While it was undisputed that defendant was present at the crime scene and evidence
showed that defendant and his friends were armed at the party, the evidence was insufficient to
prove that the unidentified shooter was a member of defendant’s alleged criminal design to
shoot Iesha and her friends but instead killed Lee unintentionally while acting in furtherance of
the plan. As discussed, hundreds of people attended the party, where most of the men were
armed and not all of them belonged to defendant’s “crew,” and forensic evidence recovered
from the scene revealed that at least 28 gunshots from seven different firearms had been fired
during the shooting—yielding the possibility of numerous unknown potential shooters who
may or may not have been associated with defendant. The police only recovered one out of the
seven firearms during their investigation. Because the fatal bullet that struck Lee had exited his
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body, its caliber remained unknown and it could not be traced to a particular weapon or
shooter.
¶ 40 We note that individuals committing crimes in the vicinity of each other cannot
automatically be held accountable for each other’s criminal acts. Rather, where there were
multiple shooters at the party, the State must show that Lee’s unidentified shooter shared in
defendant’s alleged criminal design thereby establishing the “common” link between them.
See Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991) (reversing accountability
murder conviction on the basis that the trial court “assumed,” absent any evidence, “that the
bullet that killed [the victim] must have come from a gun fired by one of the [members from
defendant’s gang]”). Absent this showing, it is not difficult to imagine other scenarios by
which Lee was shot. For example, someone who had a personal grudge against Lee could have
used the chaos and confusion of the brawl and shoot-out at the party as a convenient pretext to
shoot him with minimal risk of detection. See id. at 1159. Based on the evidence, we find that
the State has not established a factual link between the bullet that killed Lee and any shooter in
general, let alone any shooter sharing an alleged common criminal design with defendant to
shoot Iesha and her friends.
¶ 41 The State cites People v. Terry, 99 Ill. 2d 508 (1984), and People v. Kessler, 57 Ill. 2d 493
(1974), in support of its arguments that the evidence was sufficient to convict defendant of
murder on a theory of accountability. However, we find these cases to be distinguishable from
the facts in the case at bar, where neither Terry nor Kessler involved an unknown principal and
the perpetrator in each of those cases shared in a common criminal design with defendant. See
Terry, 99 Ill. 2d at 517-18 (evidence sufficient to find defendants guilty of murder on a theory
of accountability where codefendant Myers stabbed the victim while they were committing
battery against him); Kessler, 57 Ill. 2d at 499 (evidence sufficient to convict defendant of
attempted murder where defendant told two companions where he had seen large sums of
money and remained inside the car while the two companions burglarized the premises and
shot the tavern owner and a police officer during the burglary). Unlike Terry and Kessler,
evidence at trial in the instant case failed to establish that the unidentified shooter was a
member of defendant’s alleged criminal design and that he was acting in furtherance of
defendant’s plan to shoot Iesha and her friends, or anyone else, when he unintentionally shot
Lee. Thus, we find that the State failed to prove beyond a reasonable doubt that there was a
common criminal design between defendant and Lee’s killer, so as to establish defendant’s
intent to promote or facilitate the crime. See People v. Perez, 189 Ill. 2d 254, 269 (2000)
(holding that there was insufficient evidence that defendant shared gang member/shooter’s
criminal intent, or that he was engaged in a common criminal design, to support a murder
conviction on an accountability theory). Therefore, we hold that the evidence was insufficient
to convict defendant of first degree murder under an accountability theory.
¶ 42 We note that it is quite possible that defendant could have been successfully prosecuted for
murder under a different theory, such as felony murder predicated upon mob action, or could
have been prosecuted for the attempted murder of Iesha. However, the State chose to charge
defendant with first degree accountability murder and “must live with the consequences of
having proceeded on a theory that it could not establish with the certitude required in criminal
cases.” Fagan, 942 F.2d at 1160. Accordingly, we reverse defendant’s first degree murder
conviction and vacate his sentence on this conviction.
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¶ 43 We next determine whether the State offered evidence that could prove beyond a
reasonable doubt that defendant was an AHC in light of McFadden. Specifically, defendant
asserts that the State did not prove the required predicate offenses because his prior AUUW
conviction was void.
¶ 44 Outside the presence of the jury at trial, the State introduced into evidence two certified
copies of defendant’s previous convictions: (1) a certified copy of a January 9, 2007, felony
conviction for possession of a controlled substance with intent to deliver, in violation of
section 401(d)(i) (720 ILCS 570/401(d)(i) (West 2006)) (case No. 06 CR 2687101) and (2) a
certified copy of a February 1, 2002, felony conviction for AUUW, in violation of section
24-1.6(a)(1) (720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No. 01 CR 1233801). During jury
deliberations, the trial court conducted a simultaneous bench trial and found defendant guilty
of being an AHC. In sentencing defendant for first degree murder, the trial court imposed a
concurrent 20-year sentence for the AHC conviction.
¶ 45 We first review the McFadden decision. McFadden concerned a direct appeal from an
unlawful use of a weapon by a felon (UUWF ) conviction, based on the defendant’s possession
of a firearm when he had previously been convicted of aggravated unlawful use of a weapon
(AUUW). McFadden defendant’s prior AUUW conviction was based on the AUUW statutory
provision found to be unconstitutional in Aguilar. See Aguilar, 2013 IL 112116 (concluding
that the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
2008)) was unconstitutional because it violated the second amendment right to bear arms).
Similar to the defendant’s argument regarding the AHC offense in this case, the defendant in
McFadden argued that Aguilar prevented use of the prior AUUW conviction to serve as a
predicate offense for the UUWF charge.
¶ 46 On appeal, this court agreed with the McFadden defendant and vacated his UUWF
conviction. People v. McFadden, 2014 IL App (1st) 102939. However, the supreme court
reversed, reasoning that the defendant’s felon status was unaffected by Aguilar; thus, unless
the prior conviction was vacated, the prior conviction precluded the defendant from legally
possessing a firearm. McFadden, 2016 IL 117424, ¶ 31 (“Although Aguilar may provide a
basis for vacating defendant’s prior 2002 AUUW conviction, Aguilar did not automatically
overturn that judgment of conviction. Thus, at the time defendant committed the UUW by a
felon offense, defendant had a judgment of conviction that had not been vacated and that made
it unlawful for him to possess firearms.”).
¶ 47 The supreme court in McFadden relied largely on the United States Supreme Court’s
holding “that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm
prior felony conviction could be used by the government as the predicate felony.” Id. ¶ 22
(citing Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis’s
reasoning in holding that an AUUW conviction subject to vacatur under Aguilar may still
serve as a predicate for a UUWF conviction.
¶ 48 In McFadden, the supreme court recognized that “the fact of a felony conviction without
any intervening vacatur or other affirmative action to nullify the conviction triggers the
firearms disability” (McFadden, 2016 IL 117424, ¶ 24) and applied this reasoning to the
UUWF statute, which prohibited possession of a firearm by any person who “ ‘has been
convicted of a felony under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27 (quoting
720 ILCS 5/24-1.1(a) (West 2008)). The supreme court reasoned that the UUWF statute
“requires the State to prove only the defendant’s felon status” and did not suggest “any intent
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to limit the language to only those persons whose prior felony convictions are not later subject
to vacatur.” (Internal quotation marks omitted.) Id.
¶ 49 Defendant’s supplemental briefing makes two primary arguments attempting to
distinguish McFadden from his case, which concern the use of the same prior AUUW felony
as a predicate for the AHC offense. The defendant’s primary argument is that the AHC statute
is distinguishable from either the UUWF statute at issue in McFadden or the federal statute at
issue in Lewis, such that McFadden should not apply to support an AHC conviction based on
the form of AUUW invalided by Aguilar. The defendant emphasizes that the UUWF offense
merely requires proof of the defendant’s felon status based on any prior felony. See 220 ILCS
5/24-1.1(a) (West 2012). He argues that this generic “felon status” principle was the basis for
McFadden’s holding that a prior unconstitutional AUUW conviction could serve as a predicate
offense for UUWF.
¶ 50 In contrast to the status crime of UUWF, he urges that the AHC statute punishes particular
conduct because it enumerates specific offenses that can serve as the predicate felonies. He
urges that the AHC statute does not present the sort of broad sweeping firearm disability
imposed by the UUWF statute at issue in McFadden or the federal statute at issue in Lewis.
Thus, he claims that the reasoning in those decisions does not apply here. Notably, virtually
identical arguments were considered and rejected by this court in People v. Perkins, 2016 IL
App (1st) 150889, and People v. Faulkner, 2017 IL App (1st) 132884. Those cases concluded
that McFadden’s logic applies to allow a prior AUUW conviction, premised on the statutory
provision held invalid in Aguilar, to serve as a predicate for an AHC conviction. We reach the
same conclusion in this case.
¶ 51 The second argument raised by the defendant opposing the application of McFadden has
also been repeatedly rejected by our court. Specifically, the defendant asserts that United
States Supreme Court precedent, including Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct.
718 (2016), and Ex parte Siebold, 100 U.S. 371 (1880), precludes the use of a prior conviction,
premised on a statute later held unconstitutional, as a predicate for the AHC offense. He argues
that this precedent undercuts McFadden, which contains no discussion of Montgomery or
Siebold. As we have before in other recent opinions, we reject the defendant’s attempt to argue
that McFadden’s reasoning cannot apply to an AHC conviction. Faulkner, 2017 IL App (1st)
132884; Perkins, 2016 IL App (1st) 150889.
¶ 52 The defendant asserts that Montgomery and other United States Supreme Court decisions
establish “that States cannot punish citizens, whether directly or collaterally, under a law that is
facially unconstitutional.” He asserts that our supreme court’s decision in McFadden and our
court’s decision in Perkins violate this principle by holding that a facially unconstitutional
conviction for AUUW may still be used as a predicate for a separate offense until the prior
conviction is vacated. In essence, he argues that his conduct leading to the prior AUUW
conviction was legal behavior in light of Aguilar, such that the AUUW conviction was void
and cannot serve as a predicate offense.
¶ 53 This court has rejected the argument (repeated by the defendant in this case) that our
supreme court’s decision in McFadden violates the holding in Montgomery:
“Perkins contends that our supreme court ‘ignored’ the decision in Montgomery.
But as the State points outs, prior to oral argument in McFadden, counsel sought and
was granted leave to cite Montgomery as additional authority. In that motion, counsel
advanced the same arguments presented here. In response, the State argued, as it does
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here, that Montgomery posed no constitutional impediment to affirmance of
defendant’s UUWF conviction given that defendant was not seeking to vacate his prior
conviction ***, but instead was challenging his status as a convicted felon at the time
of his trial. The State argued that in this context, Lewis v. United States [citation],
which held that a defendant’s failure to vacate a prior felony conviction on grounds that
it was unconstitutional was fatal to a challenge to a felon-in-possession conviction,
controlled. We agree with the State.
At the time of Perkins’ armed habitual criminal conviction, he had prior UUWF
and AUUW convictions. Because those convictions had not been vacated at the time
Perkins possessed a firearm ***, they could properly serve as the predicates for his
armed habitual criminal conviction.” Perkins, 2016 IL App (1st) 150889, ¶¶ 9-10.
¶ 54 It is undisputed that, at the time of the defendant’s AHC conviction, he had two prior
convictions for qualifying predicate offenses. As those convictions had not been vacated at the
time of the defendant’s November 2011 arrest, they could properly serve as predicate
convictions for his AHC conviction. See, e.g., McFadden. We conclude, therefore, that the
defendant’s AHC conviction could be based, in part, on a prior AUUW conviction stemming
from the statutory provision held unconstitutional in Aguilar.
¶ 55 As we have reversed the first degree murder conviction due to insufficient evidence, we
need not reach the merits of defendant’s contention that the court erred in adding a 20-year
firearm enhancement to that conviction. We remand for the trial court to resentence defendant
on the AHC conviction only.
¶ 56 CONCLUSION
¶ 57 For the foregoing reasons, we reverse the first degree murder conviction, affirm the AHC
conviction, and remand for resentencing on the AHC conviction.
¶ 58 Affirmed in part and reversed in part.
¶ 59 Remanded for resentencing.
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