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People v. Cowart

Court of Appeals of Illinois, First District, Sixth Division

May 12, 2017

CHARLES COWART, Defendant-Appellant.

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

          JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Delort concurred in the judgment and 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, defendant was also convicted of being an armed habitual criminal (AHC). Subsequently, the trial court sentenced him to 51 years of imprisonment for first-degree murder and a concurrent 20-year sentence for the AHC conviction. On appeal, this court reversed both the first-degree murder conviction and the AHC conviction. Our supreme court then issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. Having done so, we now affirm the defendant's AHC conviction, reverse the defendant's first-degree murder conviction, and remand for resentencing.

         ¶ 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 defendant, who was subsequently charged with the first-degree murder of Lee, the offense of being an AHC, and aggravated discharge of a firearm. 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 AHC charges, but nol-prossed the remaining charges.

         ¶ 4 On June 21, 2011, the same day a bench trial commenced on the AHC charge, a jury trial commenced on the first-degree murder charge. 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 defendant, whose nickname was "LC." Tytianna noticed a group of "boys standing around" with defendant, including an individual nicknamed "Bird, " which she described as the "LC crew." Tytianna noticed that 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 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 defendant slapped Iesha. Elaina then hit 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 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 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. Defendant then struck Iesha in the face, after which Elaina and 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 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 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. 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 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 defendant in 2006, and that he came into contact with 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 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 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]

         ¶ 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 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 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 defendant. Roceaser informed the grand jury that he had no difficulty observing defendant at the time of the shooting because lighting from the school building shone on defendant. 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 defendant's firing the gun; that 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 defendant standing across the street near a school at the southwest corner of the intersection. 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 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 defendant with a gun in his hand and heard two gunshots. Roceaser saw "fire" come out of defendant's hand as he discharged his weapon "in the direction where other people [were] standing." Roceaser stated that defendant "definitely shot the gun towards people and not up into the air, " that he did not hear any gunshots before defendant fired the gun, and that Roceaser then fled upon seeing 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 defendant as the individual he observed exiting the vehicle. Officer Ebersole testified that defendant exited the vehicle, and fled westbound on Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer Ebersole observed defendant throw the handgun onto the roof of a garage near 512 North Trumbull Avenue. Moments later, Officer Ebersole apprehended defendant. Other police officers then recovered the handgun from the roof of the garage where 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 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 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 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 defendant in a photographic array. Melissa informed Detective Jones 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 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, defendant's videotaped statement to the police was published to the jury.

         ¶ 14 In his videotaped statement, defendant stated that he helped organize the Father's Day celebration for one of his "homies, " Boodro, who died eight years earlier. 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." Defendant described what unfolded next. Defendant stated that he slapped the female at the corner of West Van Buren Street and South Keeler Avenue, because she was "talking crazy." According to defendant, the "baby daddy" of the woman he had slapped then "hit [defendant's] homie, Smooth." Defendant did not know the identity of the "baby daddy." Defendant stated that when the "baby daddy" hit Smooth, defendant and all of his friends, including Smooth, Marvin, Lee (the victim), Keevo, and Big Greek surrounded the man. Defendant stated that when they had "baby daddy" surrounded in a circle, Keevo said, "watch out, I'm [fittin] to kill this bitch." 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, defendant claimed that he saw Lee "roll over on the ground, " but defendant did not know at the time, that Lee had been shot. Defendant claimed that Keevo accidentally shot Lee when Keevo was trying to "get this bitch." When a third gunshot sounded, 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, defendant answered, "Kevo shot first. [Pooh] Bear shot. Pee Wee shot. *** I had my gun out[, ] Bird had his gun out." However, 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]." Defendant noted that he had been shot on multiple occasions in the past and, thus, took his gun out once the shooting began. 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." 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 drove Lee to the hospital. 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. Defendant then gave the gun to someone named "Melva." He did not find out that his "homie" Lee had died until the following morning. 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 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 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 defendant's previous convictions: the first was 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)(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 ...

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