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People v. Cowart

Court of Appeals of Illinois, First District

February 9, 2015

CHARLES COWART, Defendant-Appellant

Page 210

Appeal from the Circuit Court of Cook County. No. 09 CR 13763. Honorable Thaddeus L. Wilson, Judge Presiding.


On appeal from defendant's convictions for first-degree murder under a theory of accountability and being an armed habitual criminal, the appellate court reversed the murder conviction on the grounds that the State failed to establish beyond reasonable doubt that there was a common criminal design between defendant and the armed partygoers who participated in the shooting melee that resulted in the victim's death, and with respect to defendant's conviction for being an armed habitual criminal, defendant's 2002 conviction for aggravated unlawful use of a weapon was held unconstitutional in violation of the second amendment right to bear arms and the State could not rely on this now-void conviction to serve as a predicate offense for being an armed habitual criminal.

For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Office of the State Appellate Defender, Christopher L. Gehrke, of counsel, Chicago, Illinois.

For Appellee: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Miles J. Keleher, of counsel, Chicago, Illinois.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.


Page 211


[¶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.


[¶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

Page 212

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 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, sad something to them, and walked back toward the elementary school grounds. Elaina then said something to Pooh Bear, which caused " all the guys out there" to walk toward the girls who were on the street corner at West Van Buren Street and South Keeler Avenue at that time. Iesha knew that something was about to happen and started to leave when Smooth or Suavo threw a drink in her face. 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

Page 213

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 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 had lied to the authorities and the grand jury because the police had threatened to take his parole away.[2]

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[¶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 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

Page 215

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 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 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 ...

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