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Kane County Nuggets

Feb 13, 2015


See People v. Cowart, 2015 IL App (1st) 113085 (02/09/2015).




Should Defendant’s conviction 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 the victim was unknown?


The defendant argued that the State failed to present any facts that connected the his friends to the fatal bullet. The physical evidence implicated numerous unknown potential shooters.


The State gambled and instead of charging the defendant for a crime against the women he was chasing they "overcharged" him with the first-degree murder on a theory of accountability.



This was a summer block party. The Defendant organized it as a tribute to a friend that had been killed years prior.


Several hundred people attended. Then an argument ensues between two women. Defendant handles it by slapping one of the ladies.


That begins a brawl. Guns get pulled out. Shooting starts.


26 shell casings were recovered. Witnesses also described several gunmen firing revolvers which wouldn’t leave a casing behind.


At least 28 gunshots from six or seven different firearms had been confirmed fired at the scene—including two .38-caliber firearms; four 9-millimeter firearms; and one unknown firearm.


The victim was actually a friend of Defendant. He was shot in the back probably while trying to run away. This was a through and through so no bullet comparison could be done. See ¶ 36.


Only one gun was actually recovered. Defendant definitely did not have the kill shot because he was seen chasing a group of women and firing at them. None of them were actually hit.

Defendant explained that the girl was “talking crazy.” ¶ 14.


The Charges


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 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).


Furthermore, 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).


The State advanced theory that there was a "common criminal design" by which the defendant showed the intent to promote or facilitate the killing of his friend, the victim.


More on Accountability


“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.” ¶ 31.


“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).‘” ¶ 31.


Additionally, when it comes to the common design rule we know that -


  • Words of Agreement Not Required

  • No Preconceived Plan Required

  • Voluntarily Attaching Oneself to a Group Bent on Illegal Acts Leads to Guilt

  • Spontaneous Group Action Qualifies

  • Identity of the Principal Actor is Immaterial


Also, ‘[i]n 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.” ¶ 31.  


Flight evidence alone is insufficient to convict, but it is circumstantial evidence which may tend to prove and establish a defendant's guilt. See People v. Foster, 198 Ill. App. 3d 986, 993 (1990).




The court noted that many witnesses identified many men at the party armed with guns. “There was no evidence that the multitude of armed men were all members of defendant's ‘crew.’” ¶ 32.


The chaotic scene and resulting melee made it impossible to determine how many guns were fired, who shot them, or which gunmen fired the bullet that killed the victim.


The mere fact that multiple illegal acts simultaneously erupted in the same vicinity, at least in at a Chicago block party, does not necessarily demonstrate a common link between or among the actors.


To win on their chosen theory of a shared common design the State would have had to prove that Defendant shared in the common design of the unknown shooter to fire a gun in an unknown direction at an unknown target.




The State would have had to prove that the unknown shooter was part of Defendant’s criminal design to chase and shoot at the women. This must be proven beyond a reasonable doubt, of course.


Thus, the reviewing court said that “the evidence was insufficient to prove that the unidentified shooter was a member of the defendant's alleged criminal design to shoot [at the women] but instead killed [their “homie”} unintentionally while acting in furtherance of the plan.” ¶ 36.



Murder conviction was reversed.


The appellate court agreed that the State charged Defendant with the wrong crime or “overcharged” him in this case.


“Inexplicably, the State chose to try defendant for the murder of [the victim] 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.” ¶ 35.


“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.” ¶ 35.


The court could not help but point out 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 [the victim]. 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.’” ¶ 39.


See Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991).


Sign of Change?


This does not by any means means that accountability cases are getting harder for the State to win.


Accountability is painted with a broad brush.  That has not changed. See ...


This is just an example of bad facts that the State tried to squeeze into the wrong theory.