People v. Cowart , 27 N.E.3d 209 ( 2015 )

2015 IL App (1st) 113085
FIRST DIVISION
FEBRUARY 9, 2015
No. 1-11-3085
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 09 CR 13763
)
CHARLES COWART, ) Honorable
) Thaddeus L. Wilson,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Connors 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, the defendant was also convicted of being an armed
habitual criminal. Subsequently, the trial court sentenced him to 51 years of imprisonment for
first-degree murder and a concurrent 20-year sentence for the armed habitual criminal
conviction. On direct appeal, the defendant argues that: (1) the State failed to establish beyond a
reasonable doubt that he committed first-degree murder under a theory of accountability; (2) the
State failed to prove beyond a reasonable doubt that he was an armed habitual criminal; and (3)
the trial court erred in imposing a 20-year firearm enhancement sentence on his first-degree
murder conviction. For the following reasons, we reverse the judgment of the circuit court of
Cook County.
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¶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 the defendant, who was subsequently charged with the
first-degree murder of Lee, the offense of being an armed habitual criminal, and aggravated
discharge of a firearm. The 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 armed habitual criminal charges,
but nol-prossed the remaining charges.
¶4 On June 21, 2011, a jury trial commenced. 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 the defendant,
whose nickname was "LC." Tytianna noticed a group of "boys standing around" with the
defendant, including an individual nicknamed "Bird," which she described as the "LC crew."
Tytianna noticed that the defendant had a gun tucked into his waistband, that he wore a white
tee-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
1
The spelling of this individual's name varies in the record as "Keevo" or "Kevo."
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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 the 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 the defendant slapped Iesha. Elaina then hit the 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 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, Bird,
and she also identified the 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
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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. The defendant
then struck Iesha in the face, after which Elaina and the 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 the 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 the 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
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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. The defendant, who wore a tee-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 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 the 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 the defendant in 2006, and that he came into
contact with the 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 the 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 the defendant shooting a gun on the night of the party, Roceaser testified at trial that he
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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 three to four hundred people outside
"celebrating something." As he walked on South Keeler Avenue toward West Van Buren Street,
Roceaser saw the 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 the 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 the defendant. Roceaser informed the grand jury that he had no difficulty
observing the defendant at the time of the shooting because lighting from the school building
shone on the defendant. The defendant was wearing a white tee-shirt, blue jeans, white tennis
shoes, and a white hat. Roceaser's grand jury testimony stated that he heard no gunshots prior to
the defendant's firing the gun; that the 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
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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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 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 the defendant standing across the street near a school at the southwest
corner of the intersection. The defendant, who was wearing white tennis shoes, blue jeans, a
white tee-shirt and baseball hat, stood under a light emanating from the school building.
Roceaser stated that the 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 the defendant with a gun in his hand and heard two gunshots. Roceaser
saw "fire" come out of the defendant's hand as he discharged his weapon "in the direction where
other people [were] standing." Roceaser stated that the defendant "definitely shot the gun
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towards people and not up into the air," that he did not hear any gunshots before the defendant
fired the gun, and that Roceaser then fled upon seeing the 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 the defendant as the individual he observed
exiting the vehicle. Officer Ebersole testified that the defendant exited the vehicle, and fled
westbound on Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer
Ebersole observed the defendant throw the handgun onto the roof of a garage near 512 North
Trumbull Avenue. Moments later, Officer Ebersole apprehended the defendant. Other police
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officers then recovered the handgun from the roof of the garage where the 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
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 the
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 the 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 the 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 the defendant in a photographic array. Melissa informed Detective Jones
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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 the 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'
testimony at trial, the defendant's videotaped statement to the police was published to the jury.
¶ 14 In his videotaped statement, the defendant stated that he helped organize the Father's Day
celebration for one of his "homies," Boodro, who died eight years earlier. The defendant and
many partygoers wore tee-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." The defendant described what unfolded next. The defendant stated that he
slapped the female at the corner of West Van Buren Street and South Keeler Avenue, because
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she was "talking crazy." According to the defendant, the "baby daddy" of the woman he had
slapped then "hit [the defendant's] homie, Smooth." The defendant did not know the identity of
the "baby daddy." The defendant stated that when the "baby daddy" hit Smooth, the defendant
and all of his friends, including Smooth, Marvin, Lee (the victim), Keevo, and Big Greek
surrounded the man. The defendant stated that when they had "baby daddy" surrounded in a
circle, Keevo said, "watch out, I'm [fittin] to kill this bitch." The 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, the defendant claimed that he saw Lee "roll over on the ground," but the
defendant did not know at the time, that Lee had been shot. The defendant claimed that Keevo
accidentally shot Lee when Keevo was trying to "get this bitch." When a third gunshot sounded,
the 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, the defendant answered, "Kevo shot first. [Pooh] Bear shot. Pee Wee shot. *** I had
my gun out[,] Bird had his gun out." However, the 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]." The defendant noted that he had been shot on multiple
occasions in the past and, thus, took his gun out once the shooting began. The 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." The 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
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drove Lee to the hospital. The 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. The defendant then gave the gun to someone named "Melva." He
did not find out that his "homie" Lee had died until the following morning. The 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 the 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 the 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 the defendant's previous convictions: the first was a certified copy of a January 9, 2007
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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 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 the defendant. Antonio
Williams (Antonio) is the 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 the defendant's
wife. Antonio, Rekia and Tiana testified that they saw the 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
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that they neither saw the 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 the 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 the defendant guilty of being an armed habitual criminal.
Following deliberations, the jury found the 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 the defendant's motion for a new trial. The
trial court then sentenced the defendant to 51 years of imprisonment, which included a 20-year
firearm enhancement, and the court imposed a concurrent 20-year sentence for the armed
habitual criminal conviction. On September 30, 2011, the trial court denied the defendant's
motion to reconsider the sentence. The defendant then filed a timely notice of appeal.
Accordingly, we have jurisdiction.
¶ 22 ANALYSIS
¶ 23 We determine the following issues on appeal: (1) whether the State established beyond a
reasonable doubt that the defendant committed first-degree murder under a theory of
accountability; (2) whether the State established beyond a reasonable doubt that the defendant
was an armed habitual criminal; and (3) whether the trial court erred in imposing a 20-year
firearm enhancement sentence on the defendant's first-degree murder conviction.
¶ 24 We first determine whether the State established beyond a reasonable doubt that the
defendant committed first-degree murder on a theory of accountability.
¶ 25 As a preliminary matter, the 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,
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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 the 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 the defendant's reply brief to the State's original response brief as a
reply brief to the State's corrected brief.
¶ 26 The 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 the
defendant was shooting at Iesha and her friends, while Lee was nowhere in sight. The 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 the
defendant's friends to the fatal bullet, and that the physical evidence implicated numerous
unknown potential shooters. He contends that instead of charging the defendant for a crime
against Iesha, the State "overcharged" him with the first-degree murder of Lee on a theory of
accountability. Specifically, the 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.
¶ 27 The State counters that the defendant was proven guilty beyond a reasonable doubt of
first-degree murder under a theory of accountability. Specifically, the State argues that the
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defendant 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 the 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 the defendant was accountable for Lee's death.
¶ 28 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 the 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 the 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.
¶ 29 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
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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).
¶ 30 At trial, the State prosecuted its case against the 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).
¶ 31 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) the 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 the 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 the 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
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
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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 the defendant's presence during its commission, the defendant's continued close
association with other offenders after its commission, the defendant's failure to report the crime,
and the 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. Willis, 2013 IL App (1st)
110223, ¶ 79 (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.
¶ 32 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 the
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 accidentially
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 the defendant and a "whole crowd of boys,"
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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, the 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.
¶ 33 The defendant makes a reasonable argument which the State has not addressed
satisfactorily. Specifically, the 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.
¶ 34 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 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, the defendant is able
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to make a convincing argument that the State charged him with the wrong crime or
"overcharged" him with the murder of Lee.
¶ 35 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 the 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 the 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 the 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"). No evidence was presented by the
State that anyone other than the defendant shot at Iesha or Elaina. Although someone in the
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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 the 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 the defendant's group of "homies," fired gunshots at Iesha and her friends and shot
Lee instead.
¶ 36 Even assuming, arguendo, that the State's evidence did show that other persons
participated in the 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 the defendant was present at the crime scene, and evidence
showed that the defendant and his friends were armed at the party, the evidence was insufficient
to prove that the unidentified shooter was a member of the 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 the 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 the defendant. The police only recovered one out of the
seven firearms during their investigation. Because the fatal bullet that struck Lee had exited his
body, its caliber remained unknown and it could not be traced to a particular weapon or shooter.
¶ 37 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 the
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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 the defendant to shoot Iesha and
her friends.
¶ 38 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 the 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 the 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
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of the 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 the 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 the defendant of first-
degree murder under an accountability theory.
¶ 39 We note that it is quite possible that the 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 the 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 the defendant's
first-degree murder conviction and vacate his sentence on this conviction.
¶ 40 We next determine whether the State established beyond a reasonable doubt that the
defendant was an armed habitual criminal.
¶ 41 Outside the presence of the jury at trial, the State introduced into evidence two certified
copies of the 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)(1) (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 aggravated unlawful use of a weapon, in
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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 the defendant guilty of being an armed habitual criminal. In sentencing the defendant for
first-degree murder, the trial court imposed a concurrent 20-year sentence for the armed habitual
criminal conviction.
¶ 42 The defendant argues on appeal that his armed habitual criminal conviction should be
reversed because the State failed to prove beyond a reasonable doubt that he had two qualifying
convictions to satisfy the necessary elements of the armed habitual criminal offense.
Specifically, he contends that his 2002 felony conviction for aggravated unlawful use of a
weapon, a predicate offense to the armed habitual criminal offense, was void because the statute
under which he was convicted for the 2002 felony was declared unconstitutional by our supreme
court's decision in People v. Aguilar, 2013 IL 112116.
¶ 43 The State counters that the defendant's armed habitual criminal conviction should be
affirmed where his 2002 felony conviction for aggravated unlawful use of a weapon was valid at
the time he possessed his handgun in the instant case.
¶ 44 The armed habitual criminal statute provides in pertinent part the following:
"(a) A person commits the offense of being an armed habitual
criminal if he or she receives, sells, possesses, or transfers any
firearm after having been convicted a total of 2 or more times of
any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated
unlawful use of a weapon; *** or
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(3) any violation of the Illinois Controlled Substances Act
or the Cannabis Control Act that is punishable as a Class 3 felony
or higher." 720 ILCS 5/24-1.7 (West 2008).
¶ 45 The parties do not dispute that the defendant's prior 2007 felony conviction for
possession of a controlled substance with intent to deliver satisfied one of two qualifying
offenses under the armed habitual criminal statute. Rather, they disagree on whether his 2002
felony conviction for aggravated unlawful use of a weapon satisfied the second of the two
qualifying offenses under the statute.
¶ 46 In Aguilar, 2013 IL 112116, our supreme court found that the Class 4 version of the
aggravated unlawful use of a weapon (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)
(West 2008)) to be unconstitutional in violation of the second amendment right to bear arms.
When a statute is declared unconstitutional, it is void ab initio, or as though the law had never
been passed. See People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). The defendant
maintains that because his prior conviction for the Class 4 form of AUUW (case No. 01 CR
1233801) is void under Aguilar, the State could not rely on this now-void conviction to serve as
a predicate offense for being an armed habitual criminal. Therefore, he argues, the State failed to
prove an essential element of the offense of armed habitual criminal. The State counters that
since the defendant's 2002 conviction for AUUW was valid at the time he possessed a firearm in
the instant case, the State sufficiently proved at trial that he was an armed habitual criminal.
¶ 47 We find that this court has already addressed the same exact issue in People v. Fields,
2014 IL App (1st) 110311 and People v. McFadden, 2014 IL App (1st) 102939, appeal allowed,
People v. McFadden, No. 117424 (Ill. May 28, 2014). In Fields and McFadden, this court,
relying on People v. Dunmore, 2013 IL App (1st) 121170, reversed the defendants' convictions
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at issue in those cases and held that each defendant's prior conviction for AUUW under the
statute that had been declared unconstitutional by Aguilar could not serve as a predicate offense
for the defendant's armed habitual criminal conviction (Fields) or unlawful use of a weapon
conviction (McFadden). We find no reason to deviate from the holdings in Fields and
McFadden. Because the defendant's prior conviction for AUUW was based on a statute that was
found to be unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as a
predicate offense for the defendant's armed habitual criminal conviction in the instant case.
Thus, we find that the State was required to, but could not, prove beyond a reasonable doubt an
element of the offense of armed habitual criminal, where the statute underlying the AUUW
conviction was found to be unconstitutional and thus, the conviction cannot serve as a predicate
offense for any charge.
¶ 48 The State maintains that the defendant's armed habitual criminal conviction should be
upheld, arguing that Fields and McFadden were wrongly decided because those cases failed to
consider how the defendant's previous AUUW conviction was still valid at the time he possessed
the firearm in the instant case. The State contends that "it is the status of the prior felony
conviction at the time the defendant possesses the firearm that controls, regardless of whether
that prior conviction is later found to be constitutionally invalid or is later expunged." In
support, the State cites two federal court cases—Lewis v. United States, 445 U.S. 55 (1980), and
United States v. Lee, 72 F.3d 55 (7th Cir. 1995). We disagree. Lewis and Lee do not involve
predicate felony convictions that were based on an unconstitutional statute and thus, have no
applicability to the facts in the case at bar. Therefore, we reiterate that we have no reason to
deviate from the holdings in Fields and McFadden.
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¶ 49 The State also argues that this court has no jurisdiction to consider the merits of the
defendant's predicate prior AUUW offense. We emphasize that the defendant's prior conviction
for AUUW (case No. 01 CR 1233801) is not at issue here, nor do we make any findings as to
whether Aguilar would be applicable to that conviction on a collateral attack. We also
emphasize that we are not vacating the defendant's AUUW conviction (case No. 01 CR
1233801) pursuant to Aguilar. We further decline to address whether formal proceedings for
collateral relief may be available to the defendant to vacate his AUUW conviction in that case.
Thus, the State's jurisdictional argument is misplaced here. Accordingly, because the State could
not prove beyond a reasonable doubt an element of the offense of being an armed habitual
criminal, we reverse the defendant's conviction and vacate his sentence for the offense of being
an armed habitual criminal.
¶ 50 In light of our holding to reverse both the defendant's conviction for first-degree murder
on a theory of accountability and for being an armed habitual criminal, we need not address the
remaining issue regarding whether the trial court erred in imposing a 20-year firearm
enhancement sentence on the defendant's first-degree murder conviction.
¶ 51 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.
¶ 52 Reversed.
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