People v. Ware

2019 IL App (1st) 160989

FIRST DIVISION
May 20, 2019

No. 1-16-0989

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 12 CR 21971
)
KATO WARE, )
) Honorable Clayton J. Crane
Defendant-Appellant. ) Judge Presiding
______________________________________________________________________________

JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Justice Walker specially concurred with opinion.
Presiding Justice Mikva concurred in the judgment and opinion and joined the special
concurrence.

OPINION

¶1 Defendant Kato Ware killed Sidney McDowell following an argument. Defendant has

never maintained that he did not kill McDowell, but he argues that McDowell was killed during

a struggle for the gun and, thus, that he cannot be guilty of anything more than involuntary

manslaughter. A jury found defendant guilty of first degree murder, and the court sentenced him

to 30 years in prison. Defendant now challenges his conviction for first degree murder, and we

affirm.

¶2 I. BACKGROUND

¶3 On May 17, 2012, Sidney McDowell and his friend, Emmanuel Barnett, were walking in

the area of 80th Street and Laflin Street in Chicago. They came across another friend, Eric
No. 16-0989

Washington, who approached them and said that defendant had just pulled a gun on him.

Washington said that when defendant pulled the gun on him, defendant accused him of not

paying the “tax” for selling drugs in the neighborhood. Defendant told Washington not to come

into the neighborhood anymore. Washington told McDowell and Barnett about the incident and

Washington was enraged by having a gun pulled on him by defendant.

¶4 McDowell, Barnett, and Washington decided to go to a restaurant in the neighborhood.

As they walked down the block, they saw a group of people, including defendant, on the front

porch of Brianna Gary’s house. McDowell approached defendant and asked him why he had

pulled a gun on Washington. The conversation reportedly began civilly, but it escalated to

include a personal disagreement between defendant and McDowell. McDowell and defendant

began yelling, swearing, and threatening each other. At that point, defendant instructed another

man, Clear Huddleston, to get him a handgun that had been concealed in the bushes in front of

the house. Huddleston obliged.

¶5 The dispute continued, now with defendant in possession of a firearm. Defendant came

down the porch steps and pointed the weapon at McDowell as arguing continued. An individual

named Jamael came down the steps from the porch and stood between defendant and McDowell

and tried to defuse the situation. McDowell walked away across the street and made a phone call

in which he instructed Darrell Williamson to bring him a gun. Defendant then ran over towards

McDowell and, from about three or four feet away, pointed the gun at McDowell’s face. The

parties continued arguing.

¶6 McDowell told defendant that he was not scared of him, and that if defendant was going

to point a gun at his face, he better “put it up.” At this point, the testimony began to conflict

about what happened next and it is central to this appeal. Defendant claims that the testimony

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about the subsequent events demonstrated that the parties struggled over the gun and that the gun

went off as a result of the struggle, so defendant could be guilty of no more than involuntary

manslaughter. The State, however, claims that the testimony demonstrated that defendant

committed first degree murder.

¶7 Several people witnessed the killing. Emmanuel Barnett testified that when defendant ran

towards McDowell, the two of them stood face to face about three or four feet apart with

defendant holding a gun up near McDowell’s face. Barnett testified that McDowell “tried to get

the gun out of his face” and “smacked the gun”—slapped once at the top of defendant’s hand.

Then Barnett heard a gunshot and McDowell dropped to the ground. Barnett testified that he

never saw McDowell grab defendant’s arm, grab the gun, or touch the gun.

¶8 Eric Washington, the one who originally had the confrontation with defendant, testified

that both he and defendant sold drugs in the area. His dispute with defendant arose from his

refusal to pay taxes to defendant in order to sell drugs in the neighborhood. Washington testified

that when defendant ran up to McDowell with a gun pointed at him, defendant and McDowell

“tussled,” there was a gunshot, and McDowell fell to the ground. Washington testified that

McDowell never touched the gun.

¶9 Marshawn Petty, a neighbor, observed the events from his house. He heard loud arguing

outside, so he looked out the window. He knew McDowell and recognized him. He saw

defendant cross the street, approach McDowell, and point a gun at McDowell’s face. Petty

testified that McDowell “lurched,” they had “a toggle,” and had a “little wrestle and tug.” Petty

testified that McDowell tried to grab the gun, lunged for it, but that defendant yanked it back.

And when defendant yanked it back, McDowell was off balance and the gun went off, striking

him in the chest. Petty testified that McDowell’s hands were off of defendant by the time the gun

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discharged, and that defendant seemed surprised by what he had done and ran off.

¶ 10 Brianna Gary, whose house defendant was at before the confrontation, saw parts of the

encounter through a window of the house. Gary testified that she saw defendant approach

McDowell at a fast pace and she saw defendant raise his arm, but she could not see his hand

because there was a tree blocking her view. She went to a different room of the house and heard

the gunshot, but did not see it happen. She returned to the window and saw McDowell lying on

the ground, and observed that defendant was no longer present.

¶ 11 None of the witnesses were particularly cooperative with the police investigation. None

of them came forward on the day of the shooting and they all talked to investigators days or

weeks later. Several police officers testified about the investigation. They apprehended defendant

about two weeks later when the police received an unrelated call about a person with a gun.

When the officers arrived to investigate, defendant and another man fled and discarded a

weapon. The police later learned that defendant was the person who had killed McDowell.

Scientific analysis revealed that the bullet recovered from McDowell’s body was fired from the

weapon recovered by the police that was discarded when the men fled.

¶ 12 The medical examiner testified and stated that the evidence indicated that McDowell was

killed by the gunshot and that he had been shot from a distance of less than two feet. A detective

that analyzed the weapon testified that it would have taken eight and a half pounds of pressure on

the trigger to fire the weapon, so it was neither a stiff trigger nor a hair trigger.

¶ 13 The case went to the jury. The trial court, on request from defendant, instructed the jury

on second degree murder and on involuntary manslaughter. During deliberations, the jury sent

out notes with questions. One of the questions was “If we are to select the charge of second

degree murder, do we still have to consider the additional gun charge or does that only apply to

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the murder one?” The court did not directly answer the question and told the jury to read the

instructions carefully and to continue to deliberate.

¶ 14 The jury found defendant guilty of first degree murder. In reading the verdict, the trial

judge indicated that the jury also found that defendant had personally discharged a firearm while

committing the offense. The jury was polled and each member affirmed that the verdict that the

judge read was what they had found. However, it was uncovered shortly after the jury was

dismissed that the jury had actually not found that defendant personally discharged a firearm

while committing the offense. Defendant was left with a judgment on the verdict finding him

guilty of first degree murder, but no firearm enhancement was applied. He was sentenced to 30

years in prison, and he now appeals.

¶ 15 II. ANALYSIS

¶ 16 A. Question from the Jury

¶ 17 Defendant argues that the trial court erred when it refused to directly answer the jury’s

question about the firearm enhancement and how it related to the charge of second degree

murder. Defendant maintains that the trial court’s failure to alleviate the jury’s confusion on the

subject violated his right to due process.

¶ 18 As a general matter, jurors are entitled to have their questions answered. People v. Clark,

52 Ill. 2d 374, 391 (1972). The circuit court has a duty to instruct the jury where clarification is

requested, the original instructions are incomplete, and the jurors are manifestly confused.

People v. Reid, 136 Ill. 2d 27, 38-39 (1990). When the jurors ask the court to clarify the law, it is

the duty of the court to answer their questions. People v. Falls, 387 Ill. App. 3d 533, 537 (2008).

¶ 19 Under some circumstances, however, the circuit court may exercise its discretion to

refrain from answering a jury’s question. Reid, 136 Ill. 2d at 39. The circuit court may decline to

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answer a jury’s question if the jury instructions are readily understandable and they sufficiently

explain the relevant law, where further instructions would serve no useful purpose, where further

instructions would potentially mislead the jury, or where the jury’s question involves a question

of fact. Id. The circuit court may also refuse to answer an inquiry by a jury if an answer or an

explanation by the court would cause the court to express an opinion on the evidence or would

probably direct a verdict one way or the other. Id. at 39-40. The trial court’s decision whether to

answer and how to answer questions asked by jurors during deliberations will not be disturbed

absent an abuse of discretion. People v. Landwer, 279 Ill. App. 3d 306, 314 (1996).

¶ 20 In this case, in a note to the judge, the jury asked “If we are to select the charge of second

degree murder, do we still have to consider the additional gun charge or does that only apply to

the murder one?” When the court reviewed the question with counsel present, the State argued

that the court should not answer the question because the answer was already in the instructions

given to the jury. Defense counsel argued that the court should answer the question and proposed

that the court respond that “If you find second degree murder, you do not have to consider other

charges.” The court did not directly answer the question and told the jury to read the instructions

carefully and to continue to deliberate.

¶ 21 Defendant contends that the pattern jury instructions, which are what was given in this

case, are not sufficient when the jury’s considerations include both second degree murder and a

firearm enhancement. Defendant argues that the court’s refusal to directly answer the question

and to instead refer the jury back to the instructions left the jury with no answer at all, even

though, according to defendant, an answer to the question would have been simple, would have

served a direct purpose, and would have been responsive to a question of law.

¶ 22 When the jury was tasked with determining whether defendant was guilty of either first

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degree murder or second degree murder, the jury instructions given in this case directed the jury

to consider three propositions: whether defendant caused McDowell’s death, whether defendant

had one of the requisite mental states, and whether defendant lacked justification for using the

force that he used. The instructions tell the jury that if any of those propositions had not been

proved beyond a reasonable doubt, their deliberations about first and second degree murder

should end, and they should move to considering the elements of involuntary manslaughter. We

know from the jury’s question and from their ultimate verdict that they found each one of those

propositions proved and moved to the next step of their deliberations on murder.

¶ 23 The jury instructions regarding the murder charges provide that if the jury has found the

three propositions outlined above to have been proved, then they should go on with their

deliberations to “decide whether a mitigating factor has been proved so that the defendant is

guilty of the lesser offense of second degree murder instead of first degree murder.” The

instructions go on to tell the jury that if they have found that defendant proved one of the

mitigating factors, they should find defendant guilty of second degree murder, but if defendant

did not prove one of the mitigating factors, they should find him guilty of first degree murder.

The instructions make clear that if the jury was to find defendant guilty of the lesser offense of

second degree murder, it would be doing so instead of finding him guilty of first degree murder.

¶ 24 The instructions concerning the firearm enhancement direct the jury to consider the

proposition for the firearm enhancement as “the allegation made in connection with the offense

of first degree murder.” The instructions state that “If you find the defendant is guilty of first

degree murder, you should then go on with your deliberation to decide whether the State has

proved beyond a reasonable doubt the allegation that during the commission of the offense of

first degree murder the defendant personally discharged a firearm that proximately caused death

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to another person.” The firearm enhancement proposition states that for the jury to find that the

State has proved the enhancement it must find that “during the commission of the offense of first

degree murder, the defendant personally discharged a firearm that proximately caused death to

another person.”

¶ 25 The instructions make clear that the firearm enhancement is only to be considered in

connection with the offense of first degree murder. In both the instructions and the verdict form

related to the firearm enhancement, it is repeatedly made clear that the enhancement is to be

considered in connection with the “first degree murder” charge only. There is nothing to suggest

that the trial court’s response to the jury’s question—directing them to read the instructions

carefully—did not solve the issue. A discerning reading of the instructions would have

unambiguously answered the jury’s question. Moreover, there is nothing to suggest that the jury

had any confusion regarding the distinction between first degree murder and second degree

murder. And ultimately the jury found that the allegation necessary to sustain the firearm

enhancement was not proven. Any misunderstanding whether the firearm enhancement applied

could not have prejudiced defendant.

¶ 26 Defendant contends that the question the jury asked illustrates that once the jury found

the propositions necessary for first degree murder, “the jury did not know where to turn next”

and “the path forward was decidedly unmarked.” Defendant opines that the jury might have been

confused about whether to contemplate the firearm enhancement before visiting the charge of

second degree murder. But in the very same instruction in which the jury was to analyze the

propositions related to first degree murder, it was instructed to continue onto the alleged

mitigating factors to decide whether second degree murder would have been appropriate. “If you

find each of [the first degree murder propositions] has been proved, your deliberations should

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continue as to the additional propositions regarding whether the defendant is guilty of second

degree murder instead of first degree murder.” There is nothing even mentioning the firearm

enhancement that could logically support defendant’s theory of confusion. The question was not

about the instruction delineating the differences between first degree murder and second degree

murder, it was about the firearm enhancement.

¶ 27 In addition, because the jury ultimately found that the enhancement was not proven,

defendant has failed to articulate how the court’s refusal to answer a question about it could be

considered prejudicial. Whether the putative inconsistency in the verdict can stand is a separate

question that we address below, but insofar as the jury’s question is concerned, defendant has

failed to show how he could have been prejudiced by the court not directly answering the jury’s

question. Defendant posits that “it is not inconceivable the jurors would have come to a different

verdict, either of second degree murder or involuntary manslaughter” had they been properly

instructed. But the question at issue did not ask anything about the differences between first

degree murder and second degree murder, and involuntary manslaughter did not even come up.

¶ 28 There is no support for a hypothesis that the jury did not understand the instructions as

they pertained to the difference between first degree murder and second degree murder. The

question concerned the interplay between the firearm enhancement and the murder charge. Any

answer that the trial judge might have given to the jury’s question would not have spoken to the

distinction between first degree and second degree murder such that we could infer that it might

have found defendant guilty of second degree murder had the judge instructed the jury

differently.

¶ 29 The trial court did not abuse its discretion when it decided not to directly answer the

jury’s question since the answer to the question was repeatedly and conspicuously expressed in

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the jury instructions. And defendant has failed to demonstrate prejudice because even if the

jurors were confused about the firearm enhancement, there is no suggestion that they were

confused about what must be proved to support a guilty verdict of first degree murder as opposed

to second degree murder.

¶ 30 B. Videotaped Prior Inconsistent Statements

¶ 31 Defendant argues that the trial court erred when it denied his request to use two clips

from Marshawn Petty’s videotaped police interview for purposes of impeachment or as

substantive evidence. During Petty’s videotaped interview, he told investigators that when the

parties started to tussle, defendant pulled his arm away, and the gun “went off.” Petty told

investigators that McDowell had “lunged” at defendant and the gun was pointed downward when

it went off. Petty also told investigators during the interview that defendant had the gun

concealed under his shirt as he approached McDowell and that he pulled out the gun in the

middle of the tussle.

¶ 32 However, at trial, Petty testified that the gun was brandished all along and that defendant

had the gun pointed at McDowell before any physical interaction between the individuals. Petty

also testified at trial that McDowell tried to knock defendant off balance by hitting defendant’s

arm, but that McDowell himself lost balance, defendant yanked back and extended his arm, and

shot one time. Defendant also argues that in the videotaped interview Petty gestured as to how

the gun was held and that he should have been able to show the video to the jury for that purpose

as well.

¶ 33 On cross-examination, defense counsel confronted Petty with the statements he had made

during the interview. Petty admitted that he had made statements in the police interview that

were not completely consistent with the testimony he had given at trial. Defense counsel made

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the jury aware that Petty had made inconsistent statements and informed the jury what those

inconsistencies were. Defendant nonetheless contends that it was an abuse of discretion for the

court to not allow him to play the video for the jurors to further demonstrate Petty’s inconsistent

statements. Defendant also argues that the statements should have been admitted as substantive

evidence.

¶ 34 A party is not precluded from introducing a witness’s prior inconsistent statements

simply because the witness admits making those prior statements. People v. Davis, 254 Ill. App.

3d 651, 666 (1993). However, the trial court retains the ability to limit the scope of

impeachment, and its exercise of discretion will not be overturned absent an abuse thereof. Id.

Prior inconsistent statements can be admitted as substantive evidence when they meet the

statutory requirements for admissibility. See 725 ILCS 5/115-10.1 (West 2016). Whether to

admit a prior inconsistent statement as substantive evidence is left to the trial court’s discretion.

People v. Harvey, 366 Ill. App. 3d 910, 922 (2006).

¶ 35 In this case, whether for purposes of impeachment or as substantive evidence, the

statements Petty made in the video interview would have added nothing to what was already

adduced on cross-examination. Defense counsel introduced the statements that Petty made to

investigators, and Petty admitted that he had made such statements and that he had been

inconsistent. As to the statements made in the interview, the jury was given all of the information

through live testimony that the video could have conveyed to them.

¶ 36 In addition, the statement Petty gave to the police is only perhaps minimally impeaching

of his trial testimony and not on a significant issue. The putatively impeaching statement relates

to questioning about when defendant pulled the gun. Where defendant was holding the gun or

whether defendant pulled the gun before or after he and McDowell started to “tussle” is not

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crucial to the issue of whether the gun was fired because defendant was acting recklessly or

because he intended to kill McDowell. The statements in the video did not lend any support to

the defense’s theory of the case. Defense counsel had the inconsistent statement, conveyed it to

the jury, and had a full and fair opportunity to challenge the veracity of Petty’s trial testimony.

Little to nothing would have been gained by the trial court allowing the statements made in the

video to be played for the jury. The trial court did not abuse its discretion when it declined

defendant’s request to introduce the compound and cumulative impeachment by playing the

video.

¶ 37 In line with defendant’s argument that the statements in the video should have been

played for the jury, defendant argues that the video should have been admitted so that he could

show the jury how Petty physically demonstrated the events through gesturing in the police

interview. In the videotaped interview, Petty can be seen demonstrating with his arms and hands

what he saw happen on the day McDowell was killed. The video shows how Petty says

defendant was holding the gun. But defendant does not explain how the gestures in the video

were inconsistent with Petty’s trial testimony. Even in the record now, it is unclear if the gestures

made by defendant in the video interview are different than those made at trial or why they

otherwise should have been admitted. Defendant did not sufficiently develop the record for that

purpose, and defendant has failed to make a showing that the trial court abused its discretion by

not letting defense counsel play the video for purposes of showing Petty’s gestures.

¶ 38 C. Other Crimes Evidence

¶ 39 Defendant argues that the trial court erred when it allowed Eric Washington to testify that

defendant had pulled a gun on him shortly before McDowell was killed. Defendant argues that

the testimony had the effect, and the State used it as such, of painting defendant as a violent

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person. Defendant argues that the testimony about defendant pulling a gun on Washington was

so prejudicial that we should grant him a new trial. Defendant highlights the testimony about

Washington stating that defendant was angry with him because he had not paid taxes for selling

drugs in the area—illuminating for the jury that defendant was a drug dealer.

¶ 40 Evidence of other crimes may not be introduced in an attempt to show a defendant’s bad

character. People v. Walston, 386 Ill. App. 3d 598, 609-10 (2008). However, evidence of other

crimes is admissible when it is relevant to a fact material to the prosecution. People v. Robinson,

391 Ill. App. 3d 822, 838 (2009). Other crimes evidence may be introduced against a defendant

for the purpose of showing modus operandi, intent, identity, motive, absence of mistake, or for

any purpose other than to show the propensity to commit crime. Walston, 386 Ill. App. 3d at 610.

Other crimes evidence is admissible if it is part of a continuing narrative of the events giving rise

to the offense and helps explain the circumstances of the crime. People v. Carter, 362 Ill. App.

3d 1180, 1189 (2005). A trial court must weigh the prejudicial effect of admitting the other

crimes evidence against its probative value. People v. Johnson, 2014 IL App (2d) 121004, ¶ 47.

The admissibility of other crimes evidence rests within the sound discretion of the trial court, and

a reviewing court will not overturn its decision absent a clear abuse of discretion. People v.

Wilson, 214 Ill. 2d 127, 136 (2005).

¶ 41 The testimony about defendant pulling a gun on Eric Washington or that it was about

drug sales was not introduced in an attempt to show defendant’s bad character. The evidence was

necessary to explain to the jury why there was a confrontation between defendant and McDowell

at all. Without the evidence regarding the genesis of the fatal confrontation, the narrative of

events would have been disjointed and would not have illustrated to the jury why and how the

events transpired. The evidence also needed to be introduced to allow the jury to consider any

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bias that Washington might have in his testimony, and because the confrontation provided

context into the parties’ mindsets relevant to whether the killing was first degree murder, second

degree murder, or involuntary manslaughter.

¶ 42 The confrontation between defendant and Washington was inextricably linked to the

confrontation between defendant and McDowell. Without evidence of the confrontation between

defendant and Washington, the jury could have been led to believe that McDowell was the

unprovoked aggressor. As defendant acknowledges in his brief, the incident between defendant

and Washington was “pivotal to the narrative”—it was not offered for the purpose of portraying

defendant as violent or for his propensity to commit crimes in general. There was nothing

arbitrary or unreasonable about the admission of Washington’s testimony about his confrontation

with defendant, and the trial court did not abuse its discretion in letting the jury hear about that

incident.

¶ 43 D. Sufficiency of the Evidence

¶ 44 Defendant argues that the evidence at trial was insufficient to prove that he committed

first degree murder and that the evidence, at most, supported a finding of involuntary

manslaughter. Defendant contends that the State failed to prove that he “knowingly or

intentionally fired the gun,” and instead that the evidence only showed that he might have acted

recklessly when he “took a handgun and waved it at McDowell’s face.” According to defendant,

“what the evidence has proved is that [he] committed involuntary manslaughter for recklessly

waving a gun at McDowell before it went off.”

¶ 45 When a defendant challenges the sufficiency of the evidence, we must decide whether,

after viewing the evidence in the light most favorable to the State, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt. People v.

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Jones, 219 Ill. 2d 1, 33 (2006). A reviewing court will not substitute its judgment for that of the

jury, and will not reverse a conviction for insufficient evidence unless the evidence admitted is

so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt of defendant's

guilt. Id. It is not the reviewing court’s function to retry the defendant. People v. Betance-Lopez,

2015 IL App (2d) 130521, ¶ 40. The trier of fact assesses the credibility of the witnesses,

determines the appropriate weight of the testimony and resolves conflicts or inconsistencies in

the evidence. People v. Johnson, 2015 IL App (1st) 123249, ¶ 21. A criminal conviction will not

be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable

doubt of the defendant's guilt. Betance-Lopez, 2015 IL App (2d) 130521, ¶ 40.

¶ 46 Defendant makes clear that his challenge is to the evidence about the moments

immediately preceding the shooting. Defendant argues that the witnesses’ testimony about the

events just before the shooting and the shooting itself fail to establish that he acted with the

requisite intent to be guilty of first degree murder. The relevant portion of testimony for each

witness begins when defendant left the porch, ran up to McDowell who had walked away, and

confronted McDowell face to face across the street. Going witness by witness, defendant begins

with the testimony of Emmanuel Barnett, so we will follow that model.

¶ 47 Barnett testified that when the parties were about three or four feet apart, defendant

pointed the gun at McDowell’s face. McDowell smacked at the gun, slapping defendant’s hand,

and the gun went off. Barnett clarified that the gun went off “as soon as [McDowell] touched

[defendant’s] hand, it seemed to” Barnett. Eric Washington testified that defendant and

McDowell “tussled,” there was a gunshot, and McDowell fell to the ground. Marshawn Petty

testified that McDowell “lurched” at defendant and that they had a “little wrestle and tug.” Petty

testified that McDowell tried to grab the gun, that he lunged for it, and grabbed defendant’s arm,

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but that defendant yanked it back and McDowell lost his balance and that was when the gun

went off. Defendant emphasizes that two of the witnesses said that the gun “went off,” rather

than that defendant intentionally fired the weapon.

¶ 48 On the other side of the issue, the evidence showed that defendant was the aggressor in

the ultimately fatal confrontation. McDowell had left the scene of their initial argument and

defendant pursued him, ran after him. Each of the witnesses testified that only defendant was

touching the weapon when it was fired. Barnett testified that he never saw McDowell grab

defendant’s arm, grab the gun, or touch the gun. Washington testified that McDowell never

touched the gun. Petty testified that McDowell grabbed defendant’s arm, but that defendant

yanked his arm back before the shot was fired, and that McDowell’s hands were off of defendant

by the time the gun discharged. Petty’s testimony spoke to a “moment of separation” as

defendant acknowledged at oral argument. Petty said that defendant yanked back from the tussle,

extended his arm, and shot one time, countering the narrative that the gun just went off. After the

shooting, defendant fled. The police detective analyzed the gun and testified that it took at least

eight and a half pounds of force to pull the trigger on the weapon used in this case.

¶ 49 Taking the evidence in a light most favorable to the State, a rational trier of fact could

have found that defendant shot McDowell and that his actions were intentional, not reckless.

There was no doubt that defendant pursued McDowell and pointed a gun at his face from a few

feet away. While the testimony about what happened next could be interpreted in different ways,

the jury interpreted it to be murder. That question was particularly in the province of the jury

which we must refrain from invading. People v. Jones, 404 Ill. App. 3d 734, 744 (2010) (the

question of whether a defendant acted intentionally, knowingly, or merely recklessly is a

question to be resolved by the trier of fact). It is the duty of the jury to weigh the evidence,

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resolve inconsistencies, and make findings of fact, like the factual finding on a defendant’s

mental state. There was competing evidence on both sides and the issue was particularly suited

for the jury to decide. Defendant presented to the jury the same defense and arguments he

presents here, and the jury rejected them. There is no reason for us to disturb the jury’s factual

finding in this case—there was ample evidence to support it.

¶ 50 E. The Conviction and the Firearm Enhancement

¶ 51 The jury found defendant guilty of first degree murder for shooting and killing

McDowell, but then, when presented with the firearm enhancement, found that the State had not

proved that defendant personally discharged a firearm causing McDowell’s death. Defendant

argues that the jury’s inconsistency cannot stand and, thus, that the verdict must be corrected to

reflect that he was only guilty of involuntary manslaughter, not first degree murder.

¶ 52 As defendant acknowledges, we have addressed this issue before. In addressing the issue,

we observed that “both the Illinois Supreme Court and the United States Supreme Court have

stated that such an occurrence does not offend the constitution and such convictions can stand.”

People v. Alexander, 2017 IL App (1st) 142170, ¶ 38 (appeal denied, 93 N.E.3d 1088 (Nov. 22,

2017) (cert. denied, 138 S. Ct. 1336 (Mar. 26, 2018)). Defendants cannot challenge convictions

on the sole basis that they are legally inconsistent with acquittals on other charges. People v.

Jones, 207 Ill. 2d 122, 133-34 (2003). And this proposition holds true when the challenge is to a

special finding on the firearm enhancement. Alexander, 2017 IL App (1st) 142170, ¶ 38.

¶ 53 Defendant argues that Alexander was wrongly decided. In Alexander, the court based its

decision on Illinois Supreme Court and United States Supreme Court precedent holding that a

defendant cannot challenge a conviction on the sole basis that he was acquitted on other charges.

Id. at ¶¶ 36-44. Defendant contends that “[b]ecause the firearm enhancement does not stand on

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its own as a separate count or charge and its viability is tied entirely to the first degree murder

charge it accompanies, it cannot be severed from that same count the way separate charges can

be.” Defendant contends that all the cases the court relied upon in Alexander were cases in which

the defendant was convicted on some counts and acquitted on others and the courts in those cases

said that the inconsistency could stand because each charge is independent and is to be

considered a separate indictment. Defendant points out that the firearm enhancement, however,

is not a separate charge and cannot stand independently.

¶ 54 The distinction made by defendant is well taken, but it does not direct a different result.

Special interrogatories are specifically designed to test general verdicts. See People v. Jackson,

372 Ill. App. 3d 605, 610 (2007). The firearm enhancement does not serve that purpose. While

special interrogatories are widely used in civil cases and provided for in the Code of Civil

Procedure (735 ILCS 5/2-1108 (West 2016)), no directly parallel process is available in criminal

cases. Id. at 612. The “use of special interrogatories in criminal cases is not favored.” Id. Finding

the firearm enhancement to be a criminal law parallel to a civil law special interrogatory as

defendant essentially asks us to do, would be, in our view, an unwelcome development in

criminal practice in Illinois. As in Jackson, “we refuse to consider the answer to the ‘special

interrogatory’ beyond the purpose for which it was asked—whether there could be a sentence

enhancement.” Id.

¶ 55 Moreover, as a practical matter, the inconsistency between jury findings that the Illinois

and United States Supreme Courts have endorsed produces the same result as an inconsistency

between the first degree murder conviction and a finding that the firearm enhancement was not

proved. In United States v. Powell, the jury found the defendant not guilty of conspiracy, but

guilty of using a telephone to commit the conspiracy. United States v. Powell, 469 U.S. 57, 60

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(1984). Logically, if there was no conspiracy, the defendant in Powell could not have been guilty

of using a telephone to engage in the nonexistent conspiracy. But the Supreme Court held that

the telephone conviction could stand. Id. at 69. Here, if defendant did not personally discharge

the firearm causing death, then, under the circumstances in this case, he could not have

committed first degree murder. But the discrepancy is legally indistinguishable from the situation

presented in Powell. It makes no legal difference that the inconsistency is between a charge and

an enhancement instead of a charge and another charge, even where one appears dependent on

the other. Defendant is attempting to use the finding of not guilty in one aspect of his case to

attack a guilty finding in another part of his case. Both Illinois and United States Supreme Court

precedent forbid him from doing so. Jones, 207 Ill. 2d at 133-34.

¶ 56 As the United States Supreme Court anticipated, the jury in this case may have been

convinced of defendant’s guilt for first degree murder yet arrived at an inconsistent conclusion

on the firearm enhancement for any number of reasons other than that he was not guilty, such as

compromise or lenity. See Powell, 469 U.S. at 65. Courts must always be wary of invading the

autonomy of the jury. Defendant asks us to find that the jury’s negative finding on the firearm

enhancement reflected its true intent on the case as a whole. But the jury did not make a finding

indicating that defendant did not personally discharge the weapon. We cannot extrapolate from

the jury’s decision on the firearm enhancement that the jurors were “not convinced of the

defendant’s guilt” for first degree murder. See id. at 64-65. We decline to depart from Alexander

or hold that it was wrongly decided.

¶ 57 III. CONCLUSION

¶ 58 Accordingly, we affirm.

¶ 59 Affirmed.

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¶ 60 Justice Walker, specially concurring.

¶ 61 I agree that the panel has followed the law, and concur with the judgment and opinion. In

People v. Jones, 207 Ill. 2d 122, 133-34 (2003) a majority of our supreme court held that

"defendants in Illinois can no longer challenge convictions on the sole basis that they are legally

inconsistent with acquittal on other charges," following the United States Supreme Court’s

decision in United States v. Powell, 469 U.S. 57 (1984). Once the Illinois Supreme Court has

declared the law, the lower courts in Illinois must follow it. Blumenthal v. Brewer, 2016 IL

118781, ¶ 61.

¶ 62 I do not question my colleague’s conclusion that this case is controlled by Jones. I do

question, however, how it is that we, as judges, are directed to allow inconsistent verdicts to

stand in criminal cases, where the standard is proof beyond a reasonable doubt, while we are also

directed to strike down verdicts that are inconsistent with a jury’s response to a special

interrogatory in civil cases, where the standard is a mere preponderance of the evidence. See

ILCS 5/2-1108 (2012); Simmons v. Garces, 198 Ill. 2d 541, 555-56 (2002). While we are

directed to rely on a special interrogatory as a “guardian of the integrity” of a civil verdict and

strike a general verdict that is “irreconcilable,” with a special interrogatory, Id. at 555-56, we

allow for no such guardian in criminal cases.

¶ 63 When the jury in this case found that defendant did not personally discharge the gun that

killed McDowell, the jury made a finding that cannot be reconciled with its guilty verdict on the

charge of first-degree murder. The first-degree murder conviction required a finding that

defendant knowingly or intentionally killed McDowell. 720 ILCS 5/9-1 (West 2010). The record

reflects that McDowell died of a single gunshot wound to the chest. The defense in this case was

that defendant did not knowingly or intentionally fire the shot, but that the gun went off during a

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struggle. The jury’s finding that defendant did not fire the gun is consistent with this defense but

inconsistent with its finding that he intentionally killed McDowell.

¶ 64 Some of our sister states have declined to follow U.S. Supreme Court precedent and do

not allow inconsistent jury verdicts to stand in criminal cases. See, e.g., People v. Delee, 108

A.D. 3d 1145 (S.Ct. N.Y. 2013); State v. Halstead, 791 N.W. 2d 805 (S.Ct. Iowa 2010); Price v.

State, 405 Md. 10, 949 A.2d 619, 630 (2008); Brown v. State, 959 So. 2d 218, 220 (Fla. 2007);

Hoskins v. State, 563 N.2d 571, 577 (Ind. 1990); DeSacia v. Alaska, 469 P. 2d 369 (1970).

Commentators have also questioned whether it is consistent with due process to allow a criminal

defendant to be convicted in the face of an inconsistent jury verdict. See, e.g., Eric L. Muller,

The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev.

771, 800 (1998). As Professor Muller notes: “Thus, in the name of protecting the possibility that

a jury has invoked its power to be lenient—a power which is at the periphery of the jury's

function—the Court sacrifices the duty of reliable fact-finding, which is at the core of the jury's

function.”

¶ 65 In Jones, our supreme court overruled its earlier decision in People v. Klingenberg, 172

Ill. 2d 270 (1996), which held that legally inconsistent verdicts cannot stand. Jones, 207 Ill. 2d at

136. Perhaps it is time to reexamine the issue. I am troubled by the current state of the law

precluding a judge's ability to take action when a jury’s core fact-finding function in a criminal

case has seriously failed due to that jury rendering two verdicts that are simply incompatible.

¶ 66 Presiding Justice Mikva joins in this special concurrence.

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