People v. Cowart

2015 IL App (1st) 113085, 27 N.E.3d 209

• Court: Appellate Court of Illinois
• Decided: February 9, 2015
• Docket: 1-11-3085
• Status: Unpublished

Opinion

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. 1-11-3085

¶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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