Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 11 CR 8264. Honorable Noreen Valeria Love, Judge Presiding.
Affirmed in part and vacated in part; cause remanded.
Law Office of Luther Franklin Spence & Associates, Maywood, Illinois (Colin Quinn Commito and Luther Franklin Spence, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney of Cook County, Chicago, Illinois (Alan J. Spellberg, Carol L. Gaines and Gina DiVito, of counsel), for APPELLEE.
CUNNINGHAM, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
[¶1] This appeal arises from the denial of defendant Cordelrow Brown's posttrial motion to vacate his 2010 conviction on seven counts of first degree murder, including two counts of knowing murder and five counts of felony murder. Those murder charges arose from the 2010 death of Mycal Hunter, which resulted from injuries Hunter sustained during a 2007 gunfight involving the defendant and other individuals. In a prior trial in 2008-09 arising from the same gunfight, the defendant was convicted of five felonies for shooting at individuals other than Hunter: one count of aggravated battery with a firearm, one count of aggravated battery, and three counts of aggravated discharge of a firearm. However, at the 2008-09 trial, the defendant was also found not guilty by directed verdict of other charges with respect to Hunter, including attempted murder, aggravated battery with a firearm, aggravated battery, and aggravated discharge of a firearm. The defendant argues that, in light of his acquittal by directed verdict in the 2008-09 trial on those charges pertaining to Hunter, his 2010 murder prosecution for Hunter's subsequent death was barred by double jeopardy and collateral estoppel.
[¶3] The defendant has been tried twice for crimes arising out of a gunfight in the early morning hours of November 24, 2007 that eventually led to the 2010 death of Hunter, an innocent bystander. Hours before the shooting, on the night of November 23, 2007, the defendant had been involved in a brawl with numerous partygoers at a nightclub in Berwyn, Illinois. According to uncontroverted trial testimony, the defendant was one of several people who fought against another group that included three friends, Terrell Spencer, Michael Dixon, and Jarrett Swift. The fistfight was broken up by police and the participants left the nightclub. Spencer, Dixon, and Swift returned to Spencer's home following the incident.
[¶4] Later that evening, Spencer, Dixon, and Swift drove together in Swift's sport utility vehicle (SUV) to a strip mall in Maywood, Illinois, to purchase drinks and food. Swift drove the SUV, Dixon was in the front passenger seat, and Spencer was in the backseat. After buying beverages at a gas station, the friends decided to purchase food from a sandwich shop elsewhere in the strip mall. After Swift stopped the SUV in front of the sandwich shop, Spencer left the vehicle to enter the store while Dixon and Swift stayed in the SUV. Spencer briefly entered the shop but returned to the SUV after he realized he had left his money in the vehicle. As he was opening the door of the SUV, Spencer suddenly saw the defendant, whom he recognized from the nightclub brawl, standing about five feet away from him with a gun. The defendant told Spencer words to the effect of " I caught you slipping," and began firing at Spencer.
[¶5] Spencer jumped into the SUV and lay down on the floor of the vehicle, but was shot in his lower back. The defendant continued to fire rounds in rapid succession, breaking the SUV's rear window and firing into the vehicle. As the defendant continued to shoot, Dixon retrieved a 9-millimeter gun from beneath the passenger seat. Dixon fired approximately five shots toward the defendant but did not hit him. Shortly thereafter, the SUV sped away from the scene to a hospital, where Spencer was treated for his injury. Spencer recalled hearing 30 to 35 shots during the incident; police recovered approximately 29 shell casings from the parking lot.
[¶6] At the same time, elsewhere in the parking lot, Hunter was sitting in the backseat of a car owned by his friend, Eric Stockley. The two men had come to the parking lot to attempt to jump-start the car of another friend, who was also in Stockley's car at the time of the gunfight. Hunter did not know the defendant or any of the SUV's occupants. During the gun battle, a bullet entered Stockley's vehicle and struck Hunter in the neck, rendering him a quadriplegic and dependent upon a ventilator for the remainder of his life. For medical reasons, the bullet could not be removed from Hunter's neck during his lifetime.
[¶7] In the early morning hours following the gunfight, Detective Elijah Willis attempted to speak to Spencer and Hunter at the hospital, but was unable to do so because they were receiving treatment. Shortly thereafter, Detective Willis spoke with Dixon, who stated that he had recognized the shooter as someone with the nickname " Cord" who lived in the neighborhood of 5th and Washington. Detective Willis, who knew that the defendant was called " Cord" and lived in the area Dixon described, prepared an array of photographs, including the defendant's photograph. Detective Willis showed the photo array separately to Dixon and Spencer, both of whom identified the defendant as the shooter. The defendant was arrested on December 28, 2007, after which Spencer and Dixon again identified the defendant in separate police lineups.
[¶8] The defendant was subsequently charged with offenses relating to Hunter, Spencer, Swift, and Dixon. With respect to Spencer and Hunter, the defendant was charged with attempted murder, aggravated battery with a firearm, aggravated battery, and aggravated discharge of a firearm. The defendant was additionally charged with aggravated battery and aggravated discharge of a firearm with respect to both Swift and Dixon.
[¶9] The defendant waived his right to trial by jury, and a bench trial commenced in December 2008. At trial, Spencer and Dixon testified that they recognized the defendant from the fight at the nightclub and identified the defendant as the individual who shot at the SUV. Dixon acknowledged that he had fired at the defendant with a 9-millimeter weapon, which was the only weapon recovered from the scene. Stockley testified that he was in his car with Hunter when Hunter was shot. Stockley recalled seeing the SUV drive away from the scene, but he did not see anyone firing a weapon or see anyone else running from the scene.
[¶10] Officer Terrence Powell, an evidence technician, testified that he located 28 or 29 shell casings from a semiautomatic weapon, as well as several bullets. Officer Powell testified that the first shell casings were recovered near the sandwich shop, which was in the middle of the parking lot. He testified that based on the pattern of shell casings, the shooter had fired while moving from east to west across the parking lot. Officer Powell also testified that the car where Hunter was struck was on the east side of the parking lot and that no shell casings had been found in that area. No forensic evidence was presented at the first trial to identify which weapon had fired the bullet that struck Hunter in the neck.
[¶11] At the close of the State's case, on January 28, 2009, the defendant moved for a directed verdict. The State opposed, arguing that the location of the vehicles and shell casings established that the defendant had fired eastward in the direction of the SUV and Stockley's car, whereas Dixon fired in the opposite direction, toward the defendant. Thus the State argued that the defendant must have fired the bullet that struck Hunter as he sat in Stockley's car. The trial court granted the directed verdict in part, explaining that it found " sufficient evidence *** as to the shooting of Mr. Terrell Spencer and the [SUV] that he was in. However I do not find there is sufficient evidence for the shooting of Mr. Mycal Hunter." Thus the court ruled that " as to the counts with Mr. Mycal Hunter *** the motion for directed finding is granted. There will be a finding of not guilty as to those." Thus, with respect to Hunter, the defendant was acquitted of attempted murder, aggravated battery with a firearm, aggravated battery, and aggravated discharge of a firearm. The trial court otherwise denied the motion for directed verdict with respect to the remaining charges against the defendant related to Spencer, Dixon, and Swift.
[¶12] The defense presented no evidence at the 2008-09 trial. After closing arguments, on January 28, 2009, the trial court found the defendant guilty of several felonies. Specifically, with respect to shooting Spencer, the defendant was convicted of aggravated battery with a firearm, aggravated battery, and aggravated discharge of a firearm. The defendant was also convicted of two counts of aggravated discharge of a firearm for shooting in the direction of Dixon and Swift. Initially, the trial court also found the defendant guilty of attempted murder as to Spencer, but the court acquitted him of that charge on March 18, 2009 after the defendant moved to reconsider the verdict. However, the trial court maintained its verdict of guilty on the five other felonies. On March 18, 2009, the defendant was sentenced to six years of incarceration for the offense of aggravated battery with a firearm and a concurrent sentence of four years for aggravated discharge of a firearm.
[¶13] Hunter, who had been dependent upon a ventilator since the November 2007 shooting, died in January 2010. The State prosecuted the defendant for first degree murder in Hunter's death. The State did not charge intentional murder, but charged the defendant with two counts of knowing murder. See 720 ILCS 5/9-1(a)(2) (West 2010). The State also charged the defendant with five counts of felony murder, predicated on the five felony convictions from the 2008-09 trial for the offenses committed against Spencer, Swift, and Dixon. See 720 ILCS 5/9-1(a)(3) (West 2010).
[¶14] The defendant again waived his right to jury trial, and in May 2013 a bench trial on the murder charges proceeded before a different judge than the judge who had presided over the 2008-09 trial. The State presented much of the same evidence it had set forth at the prior trial, including testimony from Spencer, Dixon, Stockley, and Detective Willis regarding the gunfight and the defendant's subsequent arrest. The State also elicited testimony from Dr. Jeff Harkey, an expert in forensic pathology, who had performed an autopsy on Hunter. Dr. Harkey testified that Hunter's death in 2010 resulted from blood loss caused by a complication of his ventilator dependency, which in turn stemmed from his gunshot wound in 2007. Thus, Hunter's death was considered a homicide. Dr. Harkey also testified that he had removed the bullet from Hunter's body following his death and provided it to investigators.
[¶15] The State called Tonia Brubaker, a firearms examiner, who had analyzed evidence recovered from the parking lot, the SUV, and the bullet recovered from Hunter's body. Brubaker testified that the numerous shell casings recovered from the parking lot originated from the same weapon, but did not originate from the 9-millimeter gun recovered from the SUV. She also testified that the bullets recovered, including the bullet from Hunter's body, were from the same weapon but were not fired from the 9-millmeter weapon. Brubaker also testified that certain bullets recovered were mutilated such that their origin could not be conclusively identified. Because certain bullets recovered from the scene could not be tied to a particular weapon, Brubaker ...