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08/29/95 PEOPLE STATE ILLINOIS v. CORNELIUS

August 29, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CORNELIUS TOWNSEND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Stephenson County. No. 92-CF-325. Honorable Lawrence A. Smith, Jr., Judge, Presiding.

The Honorable Justice Colwell delivered the opinion of the court: Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Cornelius Townsend, appeals his conviction of aggravated discharge of a firearm under section 24-1.2 of the Criminal Code (720 ILCS 5/24-1.2) (West 1992)). The defendant alleges two constitutional violations: (1) that the aggravated discharge of a firearm statute, which makes it a Class 1 felony to discharge a firearm "in the direction of" another person, is unconstitutionally vague, in violation of the principle of due process of law under the United States and Illinois Constitutions; and (2) that the aggravated discharge of a firearm statute carries an unconstitutionally disproportionate penalty, in violation of the principle of due process of law and the Illinois constitutional guarantee of proportionate penalties for criminal offenses. We affirm. The instant charge of aggravated discharge of a firearm against the defendant arose from an incident that occurred on November 2, 1992, during which shots were fired on a residential street in Freeport. One bullet struck and killed Curtis Brown. Also charged in connection with the incident were Grady Clark, Paris Crawford, Mario Allen, Avery Harrell, and Kelvin Brown. Defendant's case proceeded separately from those of his codefendants.

Terry Everheart, the victim's companion, testified that on November 2, 1992, sometime after 8 p.m., he and Curtis Brown went to Andre McGee's apartment at 916 Galena in Freeport. McGee's apartment was below the apartment of Carlos Evans. Curtis Brown and Evans did not get along. Curtis Brown went into McGee's apartment and phoned Evans. According to Everheart, Curtis Brown wanted "to get everything straight, you know, what was going on, because they was [sic] picking with him all day."

Curtis Brown and Everheart then went outside and stood below Evans's apartment on 916 Galena. Evans came to his upstairs window, but did not exit his apartment. Evans and Curtis Brown argued back and forth. According to a statement made by Everheart to a police officer, Curtis Brown was trying to lure Evans into coming outside to fight. Curtis Brown had a wooden bat in his coat pocket. Everheart testified, however, that at no time during the Brown/Evans argument did Curtis Brown remove the bat from his coat pocket.

At about the same time Curtis Brown was trying to lure Evans to come outside to fight, Kelvin Brown (not to be confused with the victim, Curtis Brown) and Mario Allen were at Grady Clark's house at 607 East Winneshiek. Evans phoned Clark's house and Clark answered the phone. Evans phoned Clark's house between two and five times. After one of the calls from Evans, Kelvin Brown and Allen went to Avery Harrell's house, picked up Harrell and the defendant, and returned to Clark's house. Paris Crawford was also at Clark's house at this time. Evans called Clark again. Kelvin Brown later told the police that he heard Evans screaming on the phone to Clark during one of the phone calls, "these dudes out here, man, they're trying to get in my house." Clark asked, "Who?", and Evans said, "Curtis, Curtis."

Clark brought out two rifles and a handgun after the phone calls from Evans. Clark and Crawford took the rifles, while the defendant took the handgun. Allen, Kelvin Brown, Clark, Crawford, Harrell, and the defendant all got into Kelvin Brown's car and drove to the vicinity of Galena and State, a short distance from the location where Curtis Brown and Evans were arguing. Clark, Crawford, Harrell, and the defendant got out of the car. Allen and Kelvin Brown remained in the vehicle. Clark, Crawford, Harrell, and the defendant were gone for approximately two minutes. Allen testified that while the four men were gone he momentarily stepped out of the car and then heard gunshots. Allen got back into his car after he heard the gunshots. Kelvin Brown testified that he heard about 10 to 12 gunshots while the four men were gone. Clark, Crawford, Harrell, and the defendant returned and got into Kelvin Brown's car and Brown drove away from the scene.

Everheart recalled that sometime during the argument with Evans, Curtis Brown told him to step to the side of the building. As Everheart did so, he saw a car carrying about four people driving across Galena on State street. Everheart testified that the four people were looking towards the area where he and Curtis Brown were. Everheart then walked up to the corner and saw a "few dudes" ducking and coming towards him and Curtis Brown. Everheart then returned to Curtis Brown and told him that "some dudes were coming." Everheart testified that it was at that time that shots were fired from the direction where he saw the men ducking. Everheart and Curtis Brown started running after they heard the gunshots. Everheart and Curtis Brown collided with each other and both fell to the ground. Curtis Brown got up and ran towards Chicago Street. Everheart caught up with Curtis Brown and saw him running in circles saying that he was shot. Curtis Brown collapsed beside his car. Curtis Brown died as a result of a gunshot to his back.

Back inside Kelvin Brown's car, Allen heard Crawford say that his gun failed to fire. He also heard the defendant say that his gun got jammed after two or three shots.

The police found bullet holes in a wood fence behind the building where Evans's apartment was located and recovered a spent bullet from the fence. The spent bullet was consistent with the gun Clark carried. The police also found spent bullet casings near the crime scene. The State's firearm expert testified that, in his opinion, one of the casings that police found was fired from the handgun the defendant carried. The firearm expert also testified that, in his opinion, the bullet recovered from Curtis Brown's body was fired by the gun Clark carried.

Defendant was charged with aggravated discharge of a firearm, unlawful possession of a firearm by a felon, and first-degree murder. The aggravated discharge of a firearm and unlawful possession of a firearm charges were severed for purposes of trial and the first-degree murder and aggravated discharge of a firearm charges were tried together before a jury on September 20-27, 1993. Defendant was found guilty of aggravated discharge of a firearm and acquitted of first-degree murder. Defendant was sentenced to 12 years in prison on October 28, 1993.

Defendant first contends that the aggravated discharge of a firearm statute, which makes it a Class 1 felony to discharge a firearm "in the direction of" another person, is unconstitutionally vague, in violation of the principle of due process of law. The offense of ...


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