                       Illinois Official Reports

                               Appellate Court



                    People v. Ivy, 2015 IL App (1st) 130045



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           PIERCE IVY, Defendant-Appellant.



District & No.    First District, Fourth Division
                  Docket No. 1-13-0045



Filed             August 6, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-24686; the
Review            Hon. Angela M. Petrone, Judge, presiding.



Judgment          Reversed in part, affirmed in part; mittimus corrected.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Kate E. Schwartz, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Kathleen Warnick, and Yvette Loizon, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE ELLIS delivered the judgment of the court, with opinion.
                  Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the
                  judgment and opinion.
                                             OPINION

¶1        On May 20, 2006, a shooting outside an apartment building at 308-310 East 68th Street
     in Chicago left Steven Christopher Willis (Chris) dead and Mashan Willis (Shawn), Maurice
     Webb, and Roger Garland injured. Defendant Pierce Ivy was one of at least three shooters
     present that night and, after a bench trial, he was convicted of the first-degree murder of
     Chris, as well as the attempted murders of Shawn, Webb, and Garland. He was sentenced to a
     combined 120 years’ incarceration for those offenses. His codefendant, Giovanni
     Cunningham, was tried in a separate bench trial.
¶2        On appeal, defendant does not challenge his convictions for the attempted murders of
     Shawn or Roger Garland. Instead, defendant claims that the State failed to prove him guilty
     beyond a reasonable doubt of the attempted murder of Maurice Webb or the murder of Chris.
     Defendant also asks us to correct his mittimus to reflect the correct number of days he spent
     in custody prior to his sentencing.
¶3        As explained below, we reverse defendant’s conviction for the attempted murder of
     Webb, which was based on an accountability theory. None of the evidence at trial proved that
     Webb was shot by someone acting in furtherance of a common criminal design shared by the
     defendant and the other shooters at the scene. However, we affirm defendant’s conviction for
     the first-degree murder of Chris. Two witnesses identified defendant as the man who shot
     Chris to the police and to the grand jury. While these witnesses recanted those statements at
     trial, the trial court was better-positioned to assess the credibility of their prior statements
     versus their trial testimony. Moreover, their prior statements were corroborated by other
     evidence in the case. We also correct defendant’s mittimus to reflect the 1,844 days he spent
     in custody before he was sentenced.

¶4                                         I. BACKGROUND
¶5       Because defendant challenges the sufficiency of the evidence against him, we must
     discuss the State’s evidence in detail. At the outset, we will briefly summarize the undisputed
     facts for clarity’s sake. Around 10:20 p.m. on May 20, 2006, a group of people were hanging
     out in front of an apartment building located at 308-310 East 68th Street in Chicago. Garland,
     Chris, and Shawn were among this group. Defendant, his friend Benny Love, and
     codefendant Giovanni Cunningham were also present. A man named “Fella” was also
     present, although the parties dispute whether Fella was Webb or someone else. At some point
     during the night, defendant shot Shawn and Garland. But defendant was not the only
     individual who fired a gun.
¶6       Garland testified that, on May 20, 2006, he was hanging out with Shawn and Chris
     outside the apartment building. Garland saw defendant and Benny Love pull Shawn toward
     an alley next to the building. Love and Shawn were arguing with each other, but neither of
     them threw any punches or drew any weapons. Garland and Chris pulled Shawn back out of
     the alley, and they returned to the front of the building. Garland testified that Shawn was
     standing inside the hallway of the apartment building and Chris was just outside the door.
     Garland testified that neither he, Shawn, nor Chris was armed.
¶7       Garland testified that he “felt the presence of” someone behind him, so he turned around.
     He saw defendant, who lifted his shirt, pulled out a gun, and shot him five times in his hips,


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       lower back, lower legs, and knee. Garland fell to the ground. As Garland was lying on the
       ground, defendant stepped over him, approached Shawn, and shot Shawn in the face.
       Defendant then ran west. Moments later, Garland heard more gunshots.
¶8          Tawanda Chiestder testified that she did not remember any of the events of May 20,
       2006. She also claimed that she did not remember speaking to the police or any assistant
       State’s Attorneys regarding the shooting. Chiestder had been convicted of attempted armed
       robbery and armed robbery in 2010, offenses for which she was incarcerated at the time of
       trial. She had also been convicted of possessing a controlled substance in 2008.
¶9          Assistant State’s Attorney Jennifer Bagby was called to testify about Chiestder’s
       testimony before the grand jury. According to Ms. Bagby, Chiestder told the grand jury that,
       on the evening of May 20, 2006, she was in the area of 308-310 East 68th Street. Shawn and
       Chris were among the group of people hanging out in that area and drinking. Chiestder heard
       people arguing in the alley next to the building. During the argument, she heard defendant
       yelling. Chiestder saw defendant pull out a gun and shoot Shawn in the face near the alley
       running next to 308-310 East 68th Street. After seeing defendant shoot Shawn, Chiestder ran
       into the apartment building. She looked out a small window on the door of the building and
       saw defendant stand over Chris on the corner of 68th Street and Prairie Avenue and shoot
       him three times. Before the grand jury, Chiestder admitted that she initially told the police
       that someone named “Pig” was the shooter, but said that she had lied because someone
       named “Outlaw” threatened to kill her if she did not accuse Pig.
¶ 10        Assistant State’s Attorney Scott Spiegel testified as to the contents of a written statement
       Chiestder had given to him on May 20, 2006 at the Area 2 police station. In that statement,
       Chiestder said that she had been friends with Chris and Shawn. She said that “Chris was
       known by the name of Fella on the street.” The remainder of Chiestder’s statement to Spiegel
       conformed with her grand jury testimony, as recounted by Ms. Bagby.
¶ 11        Frederick Davis, who was serving one year for a drug offense in Wisconsin at the time of
       trial, testified that, on May 20, 2006, there was a shooting, but he did not see who did it.
       Davis said that, once he heard gunfire, he ran upstairs into the building at 308-310 East 68th
       Street and did not see who was shooting. Davis remembered speaking to a detective and an
       assistant State’s Attorney after the shooting and acknowledged that he signed a statement he
       gave to the police. After viewing photographs of individuals attached to his statement, Davis
       recognized them as people on the street during the shooting, but he said that he did not
       remember telling the police that any of those people shot anyone. Davis also did not
       remember testifying before the grand jury on November 15, 2007. Davis said that, on the
       evening of May 20, 2006, he was high on marijuana.
¶ 12        In Davis’s statement, which the State introduced at trial, Davis said that, on May 20,
       2006, Davis was with his friend Giovanni at 308-310 East 68th Street. Davis went to the
       stoop of the building, but Giovanni went to the alley next to the building, where he spoke to
       defendant and a man named “Fella.” Davis said that Fella told Giovanni that the man “that
       killed your daddy out [sic] here,” and that Fella motioned to Shawn. Fella told Giovanni to
       calm down, but Giovanni ran to a mailbox at a nearby building and took out two handguns: a
       9-millimeter Glock and a “45.” Davis said that he heard defendant tell Giovanni, “Shorty,
       give me that gun. I’m gonna [sic] show you how a real [original gangster] gets down.” Davis
       said that Giovanni handed defendant the 9-millimeter and kept the “45.” Defendant then
       walked over to Shawn and shot him in the face. As Davis tried to run inside the building, he

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       saw defendant chase another man, whom Davis did not know, toward Prairie Avenue and
       shoot him. Once inside the building, he heard more than one gun being fired but did not see
       who else was shooting other than defendant. Davis said that he later saw that Fella had been
       shot as he was trying to get into the building.
¶ 13       Davis also testified before the grand jury on November 15, 2007. His grand jury
       testimony largely mirrored his statement to the police. However, Davis told the grand jury
       that Giovanni had also given a .357-caliber handgun to Fella before the shooting. Davis also
       testified that, while he saw defendant shooting in the direction of the person defendant
       chased across the street, he did not see that person actually fall down. Davis testified that,
       after the shooting, he saw the .357 handgun next to Fella.
¶ 14       Officer James Norwood of the Chicago police department testified that he was on patrol
       near 67th Street and Indiana Avenue on May 20, 2006. Around 10:25 p.m., Norwood heard
       gunshots coming from the east. As he drove toward the shots, he saw the flash from the
       muzzle of a gun, which appeared to be aiming down toward the sidewalk. Norwood
       estimated that anywhere from two to four people were near the gunfire. Norwood and his
       partner drove toward the flash and, as he approached the scene, people fled in several
       different directions. Norwood pursued one man who ran west on 68th Street. After catching
       this man, Norwood learned that his name was Benny Love. Norwood saw two other men run
       east and jump a fence, but he did not pursue those men.
¶ 15       Officer Eric Ruhnke of the Chicago police department was also patrolling the area near
       308-310 East 68th Street on May 20, 2006. Before the shooting, Ruhnke saw a group of 7 to
       10 people standing on the street near that address. He told them to get out of the street, then
       he drove away. Near the intersection of Calumet Avenue and 69th Street, Ruhnke heard
       multiple gunshots coming from the area where he had seen the group of people. Ruhnke and
       his partner drove back to 308-310 East 68th Street, where he saw four people who had been
       shot. One person was at the corner of 68th Street and Prairie Avenue. Another was lying on
       the sidewalk in front of 308-310 East 68th Street, “complaining that he had been shot” and
       asking for help. Two more victims were just inside the door to the apartment building at
       308-310 East 68th Street. These two victims were lying so close to each other that they were
       touching.
¶ 16       Charles McGee testified that he lived at the corner of 68th Street and Calumet Avenue at
       the time of the shooting. McGee said that, on the evening of May 20, 2006, defendant
       knocked on the window of his house. Defendant had a bloodstained, white T-shirt wrapped
       around his head. McGee let defendant into his bathroom and gave defendant a washcloth.
       When defendant removed the T-shirt from around his head, McGee saw that defendant had
       “a big knot and a scar” on his head. Defendant told McGee that he had been shot and that he
       had “left some people around the corner on the ground.” McGee could hear sirens outside
       while defendant was in his house. Later, defendant told McGee that the wound on his head
       was not a gunshot; he said that he had bumped his head on a pole while climbing over a
       fence.
¶ 17       Leonard Stocker, a forensic investigator, was assigned to process the scene of the
       shooting. When Stocker arrived, Chris’s body was lying near 6801 South Prairie Avenue,
       which was west of 308-310 East 68th Street, near the intersection of 68th Street and Prairie
       Avenue. Stocker found five .380 cartridge cases lying on the sidewalk near Chris’s body. He
       found a .380-caliber handgun underneath a car parked in the street. He also recovered a

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       9-millimeter Glock handgun from the parkway grass near Chris’s body. Stocker found two
       .45-caliber cartridge cases and three 9-millimeter cartridge cases on the sidewalk just east of
       the doorway of 308-310 East 68th Street. He also found two fired bullets near that address:
       one on the sidewalk in front of the building and one on the second step of the building.
¶ 18       The parties stipulated to much of the physical evidence in the case. No gunshot residue
       was found on Benny Love’s hands. DNA testing excluded defendant from the three possible
       profiles found on the .380-caliber handgun found at the scene, and the swabs taken from the
       9-millimeter were unsuitable for testing. The fired bullets found at the scene were from a
       .45-caliber handgun and neither was from the two guns left at the scene. Five of the cartridge
       cases Stocker recovered were from the .380-caliber handgun found on the scene and three of
       the cartridge cases on the scene were from the 9-millimeter he recovered. The two other
       cartridge cases came from a .45-caliber handgun, not the two guns that were recovered. An
       autopsy revealed that Chris had died from six gunshot wounds. Ballistics testing could not
       connect any of the bullets recovered from Chris’s body to either the 9-millimeter or the .380
       found at the scene. Chris’s wounds exhibited no evidence of close-range firing. A bullet
       surgically removed from Shawn could not be matched to any of the guns that Stocker
       recovered.
¶ 19       Linda Willis, Shawn’s mother, testified that Shawn survived the bullet wound to his face,
       but he is quadriplegic. The parties stipulated that Michelle Webb, Webb’s mother, would
       testify that he had been shot in the head on May 20, 2006 and that he suffers from a traumatic
       brain injury that prevents him from speaking in full sentences.
¶ 20       Officer Armando Garza of the Chicago police department testified that, on October 29,
       2007, defendant approached him at 8700 South State Street. Defendant told Garza that he
       wanted to turn himself in, that he was “tired of running,” and that he had a “first degree
       murder” charge pending against him.
¶ 21       Detective Brian Forberg interviewed defendant after he turned himself in. The State
       published defendant’s videotaped interrogation at trial. During his interrogation, defendant
       said that he was at the entrance of the apartment building that night with Love. Love and a
       “light-skinned” person whom defendant called “Chris” had gotten into a fight, and defendant
       attempted to break it up. Then “Chris” and another person put their hands under their shirts
       and followed defendant and Love to the alley. Defendant said that Giovanni Cunningham
       passed him a gun which he used to shoot “Chris.” Defendant also said that he shot a “dark,
       skinny gun” on the same side of the apartment building as “Chris.” Defendant then dropped
       the gun and fled. When shown photographs of the victims, defendant expressed confusion
       over their names. He said that he did not recognize Shawn’s name. Defendant denied
       shooting anyone seven times. Eventually, defendant told the police that he was “through
       talking.”
¶ 22       Defendant testified on his own behalf at trial. He said that he was hanging out with Love
       outside the building at 308-310 East 68th Street on May 20, 2006. Defendant explained that a
       person who he thought was named “Chris” approached him and Love. Defendant said he
       later learned that this person was not Chris, he was Shawn. Defendant testified that Shawn
       and Love got into a fight and that defendant pushed Love away to break it up. Defendant then
       went to urinate in the alley next to 308-310 East 68th Street, when he heard someone behind
       him. Defendant turned and saw Shawn, who was holding his hands behind his back. Another
       man then appeared at the entrance of the alley and put his hand under his shirt. This

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       unidentified man then backed up to a car, opened the trunk, and pulled out a gun. Defendant
       said that gunshots went off in another location, distracting Shawn and the man with the gun.
       Defendant grabbed the gun out of the man’s hand and shot Shawn. He then fired two shots at
       the unknown man, dropped the gun, and ran. Defendant denied chasing Chris and shooting
       him. He also denied telling the police that Giovanni Cunningham had given him a gun.
¶ 23        The trial court found that Garland was credible. The court found that defendant was not
       credible, noting that the statements he made during his interrogation differed from his
       in-court testimony. The court also noted that defendant’s explanation of events did “not make
       sense” because defendant said that he shot Shawn first even though the other person with
       Shawn allegedly had a gun. The court made the following findings of fact regarding each of
       the victims:
                    “Defendant shot Roger Garland multiple times. Defendant shot [Shawn] Willis in
               the face. Defendant was at least one shooter of [Chris] Willis. Defendant either shot
               Maurice Webb or is one of the persons responsible for the gunshots to Webb, as
               defendant initiated the shooting spree that devastated the neighborhood.
                    Defendant is legally responsible for all the carnage he started. Defendant acted
               not in self defense, but on a perceived disrespect or for whatever reasons he had.”
¶ 24        The court found defendant guilty of the first-degree murder of Chris, the attempted
       first-degree murder of Shawn, the attempted first-degree murder of Garland, and the
       attempted first-degree murder of Webb. With respect to the charges relating to Chris, Shawn,
       and Garland, the trial court found that defendant had personally discharged a firearm that
       proximately caused their death or injury. With regard to the attempted first-degree murder of
       Webb, the trial court did not make a similar finding. Defendant appeals.

¶ 25                                          II. ANALYSIS
¶ 26                A. Sufficiency of the Evidence of the Attempted Murder of Webb
¶ 27       Defendant first challenges the sufficiency of the evidence supporting his conviction for
       the attempted first-degree murder of Maurice Webb. Defendant contends that the trial court
       found that defendant was guilty of that offense on the basis of accountability, but that there
       was no evidence to support that finding because there was no evidence proving who shot
       Webb. The State argues that, even if defendant did not shoot Webb, he was accountable for
       that offense because it resulted from defendant and his accomplices’ acts in furtherance of
       their plan to shoot Shawn.
¶ 28       The parties agree that, in finding defendant guilty of the attempted first-degree murder of
       Webb, the trial court found that defendant was liable for Webb’s shooting as an accomplice.
       We agree with that characterization. Again, in rendering its verdict of guilty as to the
       attempted murder of Webb, the trial court said that “[d]efendant either shot Maurice Webb or
       is one of the persons responsible for the gunshots to Webb, as defendant initiated the
       shooting spree that devastated the neighborhood. Defendant is legally responsible for all the
       carnage he started.” Saying that defendant “either” shot Webb or is legally accountable for
       Webb’s shooting cannot be read as a finding, beyond a reasonable doubt, that defendant shot
       Webb himself. The additional fact that the trial court did not find that defendant personally
       discharged the firearm that led to Webb’s serious bodily injury only bolsters that conclusion.



                                                  -6-
       Thus, our inquiry is limited to whether defendant was properly found guilty of the attempted
       murder of Webb based on an accountability theory.
¶ 29       A person is legally responsible for the criminal conduct of another, i.e., is an accomplice,
       if he or she, “[e]ither before or during the commission of [the] offense, and with the intent to
       promote or facilitate such commission, *** 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) (West
       2006). In this case, defendant only contests the intent element.
¶ 30       In order to prove that a defendant possessed the intent to promote or facilitate the crime,
       the State must prove either that the defendant shared the criminal intent of the principal, or
       that a common criminal design existed between the principal and the defendant. People v.
       Fernandez, 2014 IL 115527, ¶ 13. Where a common criminal design exists, any acts
       performed in furtherance of that design committed by one party are considered to be the acts
       of all parties to the design or agreement, and all parties are responsible for the consequences
       of those acts. Id. Where a defendant attaches himself to a group bent on illegal activity and
       knows of its criminal design, we may infer that the defendant shared the common purpose of
       the group. Id. In reviewing the sufficiency of the State’s evidence of defendant’s
       accountability, we must view the evidence in the light most favorable to the State and
       determine whether any rational trier of fact could have found the elements of the crime
       proven beyond a reasonable doubt. Id.
¶ 31       In this case, the State concedes that it did not prove that defendant shared the intent of the
       individual who shot Webb. Instead, the State argues that defendant was liable because it
       proved that he had a common design with the other shooters–to avenge the death of
       codefendant Giovanni Cunningham’s father by killing Shawn. The State claims that the
       shooting of Webb was performed in furtherance of that end, regardless of whether Webb’s
       shooting may have been accidental.
¶ 32       The State further concedes that it did not present any direct evidence of who shot Webb.
       But the State contends that “[i]t does not matter under the law[ ] who actually shot Maurice
       Webb, because defendant attached himself to a group bent on illegal activities and Webb got
       shot as a result.” The State’s position is in accord with the verdict and reasoning rendered by
       the trial court with regard to the attempted murder of Webb, finding defendant guilty of
       attempting to murder Webb because “defendant initiated the shooting spree that devastated
       the neighborhood. Defendant is legally responsible for all the carnage he started.”
¶ 33       That reasoning is not an accurate summary of the law of accountability. It is not enough
       that defendant initiated the shooting spree and set into motion a chain of events that resulted
       in Webb being shot. Instead, in order for defendant to be accountable for Webb’s shooting,
       the State was required to prove that Webb was shot in furtherance of the common criminal
       design which defendant shared with his accomplices. In other words, while the State did not
       need to prove which accomplice shot Webb, it had to prove that an accomplice shot Webb.
¶ 34       This principle of accomplice liability is embodied in several cases. In People v. Cooper,
       194 Ill. 2d 419, 426-27 (2000), the Illinois Supreme Court found that the defendants could
       not be held accountable for murder where the evidence showed that the victim was likely
       shot by members of a rival gang returning gunfire initiated by the defendants. The evidence
       showed that the murder occurred during a shootout between two gangs: the Gangster
       Disciples and the Black Disciples. Id. at 422. The defendants were members of the Gangster
       Disciples; the victim, also a Gangster Disciple, was killed by return gunfire from the rival

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       Black Disciples. Id. At the close of the defendants’ bench trial, the court found that the
       defendants were accountable for the victim’s death even though they did not shoot him, as it
       was “ ‘foreseeable’ ” that the victim might be killed by return gunfire from the Black
       Disciples. Id.
¶ 35       The supreme court reversed the defendants’ murder convictions, holding that the
       defendants could not be held accountable for a death that was caused by a rival gang member
       returning fire in self-defense. Id. at 427. The court found that, while those facts may have
       supported convictions under a felony-murder theory, the defendants could not be held liable
       under an accountability theory. Id. The court cited with approval this passage from the
       appellate court’s unpublished order:
               “ ‘The trial judge’s comments indicate he believed [the victim’s] death was a
               reasonably foreseeable result of defendants’ actions. Nevertheless, the concept of
               reasonable foreseeability (i.e. proximate cause), while essential to a felony murder
               inquiry, has no place in accountability analysis ***.’ ” Id. at 426-27 (quoting People
               v. Cooper, Nos. 1-95-3211, 1-95-3212 cons. (1998) (unpublished order under
               Supreme Court Rule 23)).
¶ 36       Thus, the defendants in Cooper could not be held accountable for murder simply because
       they initiated the exchange of gunfire, even though it was reasonably foreseeable that death
       might result from the shooting spree they initiated. Rather, the defendants could be liable for
       murder under an accountability theory only if one of their accomplices committed the
       murder.1
¶ 37       Similarly, in Fagan v. Washington, 942 F.2d 1155, 1158-59 (7th Cir. 1991), the Seventh
       Circuit Court of Appeals, interpreting Illinois accountability law, found that the defendant
       could not be held accountable for the murder of a victim who was shot with a gun that was
       not fired by the defendant or his only other armed accomplice. The defendant and his
       accomplice, a man named “Dede,” were members of a group of 6 to 13 Black Gangster
       Disciples who sought revenge against a rival gang called the Vice Lords. Id. at 1156. The
       State’s evidence showed that only the defendant and Dede were armed with a rifle and a
       shotgun, respectively. Id. It also showed that the defendant and Dede, standing as far as 45
       feet from the group of Vice Lords, fired several shots, then ran away. Id. But the physical
       evidence proved that the victim had been shot with a .38-caliber pistol that was placed
       against his back. Id.
¶ 38       The Seventh Circuit reversed the defendant’s conviction because “[n]o evidence was
       presented that [defendant] shared a common design with whoever shot” the victim. Id. at
       1159. The court noted that the evidence proved that neither the defendant nor Dede shot the
           1
            We recognize that the central issue in Cooper was the defendants’ liability under a different
       provision of the accountability statute (720 ILCS 5/5-2(a) (West 1994)) than the provision at issue in
       this case (720 ILCS 5/5-2(c) (West 2006)). See Cooper, 194 Ill. 2d at 425-26 (discussing the State’s
       argument that the defendants were accountable under section 5-2(a)). However, that was because the
       State conceded, after the appellate court so held, that the defendants could not be accountable under
       section 5-2(c). Id. at 423-24. Moreover, the supreme court expressly agreed with the appellate court’s
       reasoning that defendants could not be held liable under the same provision at issue here–section
       5-2(c)–and adopted that same reasoning when discussing section 5-2(a). Id. at 424, 426-27. The court
       also stated that the defendants could not be held liable “under either section 5-2(a) or (c).” Id. at 427.
       Therefore, we find Cooper clearly applicable to this case.

                                                       -8-
       victim, and it did not prove that any of the other Black Gangster Disciples carried a
       .38-caliber pistol or shot the victim at point-blank range. Id. The court declined to find that
       the defendant was accountable simply because he “started shooting and someone got killed,”
       noting that such a holding would expand accomplice liability to “something like strict
       liability” that is embodied in felony-murder rules. Id.
¶ 39       While Fagan was a federal case, and thus not binding on us, we find its rationale
       persuasive in light of Cooper. Moreover, this court has previously embraced Fagan’s
       discussion of Illinois’s accountability principles. See, e.g., People v. Garrett, 401 Ill. App. 3d
       238, 247-48 (2010); People v. Chirchirillo, 393 Ill. App. 3d 916, 923-24 (2009).
¶ 40       Finally, in People v. Cowart, 2015 IL App (1st) 113085, ¶¶ 32-37, we recently held that
       the State could not establish the defendant’s accountability for a shooting where there were
       multiple shooters, but the State did not prove that the fatal shot was made by one of the
       defendant’s accomplices. There, the evidence showed that the victim was shot at a party
       where numerous patrons were armed, and witnesses testified to hearing many gunshots. Id.
       ¶¶ 3-7, 9-10. The State’s evidence showed that the defendant shot at people at the party, but
       not the victim. Id. ¶¶ 5-6, 35. But the defendant was convicted of the victim’s murder on an
       accountability theory. Id. ¶ 1. We stressed that the State was required to prove “that [the
       victim’s] unidentified shooter shared in the defendant’s alleged criminal design.” Id. ¶ 37.
       We held that, even assuming that other shooters at the party shared a common design with
       the defendant, the State’s evidence failed to prove that any of the participants in that common
       design “was the shooter who killed” the victim. Id. ¶ 36.
¶ 41       Cowart reaffirms the principles outlined in Cooper and Fagan: while the State does not
       need to prove the shooter’s identity in an accountability case, the State must prove that the
       shooter was among the group of individuals with whom the defendant shared a common
       criminal design. If the shooter cannot be narrowed down to one of the accomplices, the
       defendant cannot be found guilty of murder under an accountability theory. See id. ¶ 37
       (reversing murder conviction based on accountability where “the State has not established a
       factual link between the bullet that killed [the victim] and any shooter in general, let alone
       any shooter sharing an alleged common criminal design with the defendant”).
¶ 42       The State cites People v. Bell, 96 Ill. App. 3d 857 (1981), for the principle that it does not
       “matter that it is unknown exactly who actually fired the shots that struck and injured Webb.”
       But Bell does not diminish the State’s burden of proving that the acts were committed by
       someone who shared a common criminal design with the defendant. In Bell, the State’s
       evidence showed that defendant was among a group of people who planned to beat up the
       victim. Id. at 860. The defendant and others abducted the victim, transported him to a house,
       beat him, and strangled him. Id. at 861. The police found the victim’s body in the house, and
       an autopsy revealed that the victim had died from one of three gunshot wounds to his body.
       Id. at 862.
¶ 43       The court held that the circumstantial evidence was sufficient to convict the defendant as
       an accomplice even though there was no evidence as to which individual, precisely, fired the
       fatal shot, but that was because the universe of possible suspects was limited to the group of
       accomplices that severely beat and strangled the victim shortly before he died; there was no
       evidence that anyone else had entered the house. Id. at 865. In addition, the medical examiner
       at trial had testified that the beating alone, even absent a subsequent gunshot, would have
       been sufficient to cause death. Id. Thus, in Bell, the court held that the State’s evidence was

                                                   -9-
       sufficient to establish that someone who shared the defendant’s criminal design (i.e.,
       someone who beat the victim) committed the murder. The court did not say that it was
       irrelevant who killed the victim.
¶ 44       The State also cites People v. Fernandez, 2014 IL 115527, for the proposition that
       defendant was accountable “because [he] attached himself to a group bent on illegal activities
       and Webb got shot as a result.” The State misconstrues the holding of Fernandez. The main
       point of contention in Fernandez was whether the defendant could be liable for his
       codefendant’s act of firing a gun at a police officer where there was no evidence that the
       defendant knew that the codefendant was armed. Id. ¶ 12. The Illinois Supreme Court held
       that, because the defendant’s accomplice shot at the officer while performing the burglary
       that he and the defendant had planned together, defendant was accountable for his
       accomplice’s act. Id. ¶ 17. However, in Fernandez, the evidence unequivocally showed that
       the defendant’s accomplice shot at the officer. Id. That point renders this case distinguishable
       from Fernandez. The issue in this case is not whether defendant knew that his accomplices
       were armed; the issue is whether the State proved that one of defendant’s accomplices shot
       Webb in furtherance of their common criminal design. Fernandez does not support the
       State’s assertion that the shooter’s identity was wholly irrelevant.
¶ 45       Our discussion of the above cases shows that accomplice liability cannot lie unless there
       is evidence that someone with whom defendant shared a common criminal design committed
       the act for which defendant is being held accountable. While the felony-murder doctrine may
       render defendant liable for any death that proximately results from events he initiated, the
       accountability doctrine does not. See also People v. Dennis, 181 Ill. 2d 87, 105 (1998)
       (noting that “[f]elony murder and accountability have theoretically different underpinnings”
       and the law seeks “the broadest bounds for the attachment of criminal liability” in
       felony-murder cases, but not in accountability cases). Thus, it was incorrect to convict
       defendant for the shooting of Webb merely because defendant “initiated the shooting spree,”
       and the State is incorrect that the identity of Webb’s shooter is irrelevant. While it was not
       necessary to specifically identify the individual who shot Webb, it was absolutely required
       that the State prove, beyond a reasonable doubt, that the person who shot Webb was one of
       defendant’s accomplices.
¶ 46       The State failed to meet that burden in this case. The State did not prove that Webb was
       shot by someone with whom defendant shared a common criminal design. There was no
       testimony whatsoever as to who shot Webb. In fact, the only evidence even placing Webb
       among the victims was Officer Ruhnke’s testimony that he saw four victims at the scene, and
       Webb’s mother’s stipulated testimony that he had been shot in the head on May 20, 2006.
       Beyond those two references, we are at pains to even find another mention of Webb
       anywhere during the trial; defendant claims that Webb’s name was never otherwise
       mentioned.2


           2
            There was some evidence that the individual known as “Fella” was Webb, as Davis’s statement
       referred to him as such. But Chiestder’s statement expressly said that she had known Chris for years
       and that his nickname was “Fella.” The trial court did not make an express finding of fact as to Fella’s
       identity. We need not resolve this confusion, because even if the references to “Fella” were to Webb,
       there was still no testimony as to who shot “Fella.”

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¶ 47       Not one of the eyewitnesses to the shooting–Garland, Chiestder, or Davis–mentioned
       who shot Webb. Garland, whose testimony was specifically credited by the trial court,
       testified that defendant shot him, then stepped over him and shot Shawn. But then defendant
       fled to the west. Garland did not see defendant shoot Webb, nor did he testify that anyone
       else shot Webb.
¶ 48       Similarly, neither Chiestder nor Davis mentioned who shot Webb in their prior
       statements to the police or the grand jury. Chiestder said that she was just inside the door of
       the apartment building, watching defendant shoot Chris across the street. In light of her
       purported location, she would have been standing very close to Webb. But she said that she
       only saw defendant shoot Shawn and Chris; she did not say that she saw anyone shoot Webb.
       She heard other gunshots but did not see their source. Davis testified that he was on the stoop
       of the building during the shooting. He saw defendant shoot Shawn in the face but did not see
       anyone else get shot. He said that he later saw that “Fella” had been shot. But even assuming
       that Fella was Webb, Davis gave no hint as to who shot him. Thus, none of the eyewitnesses
       to the shooting identified anyone else as a shooter, much less as the shooter of Webb.
¶ 49       We know that three guns were fired during the incident: a 9-millimeter Glock, a .380
       Kel-Tec, and a .45 handgun. The evidence thus reveals at least three shooters. One of those
       shooters was obviously defendant, but no eyewitness testimony reveals the identity of the
       other two shooters. The State obviously believes that codefendant Giovanni Cunningham was
       one of the shooters, but no testimony substantiated that fact. As for the third shooter, the
       evidence is entirely absent.
¶ 50       The 9-millimeter and the .380 were left at the scene, but the .45 was never recovered.
       Defendant was excluded as being a contributor to the DNA recovered from the .380.
       According to Davis’s prior statements, Giovanni Cunningham gave defendant a 9-millimeter
       handgun, gave “Fella” a .357 handgun, and kept a .45-caliber pistol for himself. Davis also
       said that he saw the .357 lying next to Fella, not underneath the car where the .380 was
       recovered. Even assuming that Davis, who disclosed no basis of knowledge for his ability to
       identify these firearms, correctly identified the type of firearms Cunningham distributed to
       defendant and Fella, none of the State’s evidence accounted for who was armed with the .380
       handgun found at the scene. Although it was possible that Benny Love, whom Garland
       identified as being with defendant before the shooting, carried the .380, no one identified
       Love as being among the armed men that night. Moreover, according to a gunshot residue
       test performed shortly after Love was caught running from the scene, Love had not fired a
       gun. Thus, there was evidence that there was at least one person shooting at the scene who
       was not identified as being among defendant’s possible accomplices.
¶ 51       Moreover, no fired bullets were recovered from Webb to establish which gun caused his
       injuries. One fired bullet was recovered from the sidewalk outside the building and one fired
       bullet fragment was found on the second step of the stoop of the building. Both of these fired
       bullets were .45-caliber bullets and were not fired from the 9-millimeter or .380 recovered
       from the scene. While this suggests that Cunningham may have fired shots near the entrance
       of the building, even viewing this evidence in the light most favorable to the State, it does not
       prove that Webb was hit with a .45-caliber bullet. Moreover, as we have already noted, none
       of the eyewitnesses testified that Cunningham (or, for that matter, anyone besides defendant)
       was firing a weapon that night.


                                                  - 11 -
¶ 52       In sum, the State’s evidence proved almost nothing about Webb’s shooting. While
       eyewitnesses testified that defendant shot Garland, Shawn, and Chris, none said that he shot
       Webb. No one could identify who else was shooting that night, much less who shot Webb.
       While some of the evidence showed that codefendant Cunningham was also armed, there was
       at least one other shooter whose identity the State could not establish. Even viewing the
       evidence in the light most favorable to the State, we cannot find that the State proved beyond
       a reasonable doubt that anyone with whom defendant shared a criminal design shot Webb.
¶ 53       Absent any eyewitness testimony as to who shot Webb, absent any recovered bullet from
       Webb that pinpointed the gun used, and given that at least one of the three shooters was
       never identified, we find the facts of this case quite similar to those in Cowart, discussed
       above, in that “the State has not established a factual link between the bullet that killed [the
       victim] and any shooter in general, let alone any shooter sharing an alleged common criminal
       design with the defendant.” Cowart, 2015 IL App (1st) 113085, ¶ 37. We reverse defendant’s
       conviction for the attempted first-degree murder of Webb.

¶ 54                      B. Sufficiency of the Evidence of the Murder of Chris
¶ 55       Defendant also contends that the State presented insufficient evidence to support his
       conviction for the first-degree murder of Chris. Defendant argues that the only evidence to
       support his conviction for that offense came from Tawanda Chiestder’s and Frederick
       Davis’s prior statements to the police and grand jury, and that those accounts were not
       credible because they recanted them before trial, and the other evidence at trial contradicted
       them. The State urges us to affirm defendant’s murder conviction because both Chiestder and
       Davis identified defendant as the person who shot Chris, and we should not engage in
       credibility determinations that the trial court was better suited to undertake.
¶ 56       When reviewing the sufficiency of the evidence, we must determine whether, viewing the
       evidence in the light most favorable to the State, any rational trier of fact could have found
       that the State proved the necessary elements of the offense beyond a reasonable doubt.
       Fernandez, 2014 IL 115527, ¶ 13. We may not substitute our judgment for the trier of fact’s
       regarding the weight of the evidence or the credibility of the witnesses. People v. Jackson,
       232 Ill. 2d 246, 280-81 (2009). We will not reverse a conviction simply because the evidence
       is contradictory or because the defendant claims that the witnesses were not credible. People
       v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). The State’s evidence may be sufficient even
       where it consists entirely of the prior, recanted statements of eyewitnesses. See, e.g., People
       v. Griham, 399 Ill. App. 3d 1169, 1170-71 (2010); People v. Morrow, 303 Ill. App. 3d 671,
       677 (1999).
¶ 57       In this case, the trial court found that defendant shot Chris. This conclusion was
       supported by the prior statements of Chiestder and Davis, who both said that they witnessed
       defendant standing over Chris, shooting him multiple times. While Chiestder and Davis
       recanted those statements at trial, and those statements conflict with each other and other
       evidence, we may not reweigh the evidence. The trial court, as the trier of fact in this case,
       had an opportunity to review all of the evidence, along with its inconsistencies. We may not
       second-guess the trial court’s reliance on Chiestder’s and Davis’s prior statements.
¶ 58       Moreover, Garland’s testimony, which the trial court expressly found to be credible,
       corroborates the trial court’s finding that defendant shot Chris. Garland testified that, after
       defendant shot him and Shawn, defendant ran west, the direction in which Garland then

                                                  - 12 -
       heard additional gunfire. This supports Chiestder’s and Davis’s assertions that defendant shot
       Shawn, then chased Chris west toward Prairie Avenue. This also comports with the police
       testimony that Chris’s body was found at the corner of 68th Street and Prairie Avenue, west
       of the apartment building where Garland and Shawn were shot.
¶ 59       Defendant notes that Chiestder’s and Davis’s prior statements conflict with Garland’s
       account because they both said that Shawn was the first person defendant shot, whereas
       Garland testified that defendant shot him first. While this is a significant contradiction
       undermining the strength of the State’s evidence, it was the trial court’s prerogative to assess
       the credibility of these witnesses and to weigh the evidence. See Siguenza-Brito, 235 Ill. 2d
       at 228 (“[I]n a bench trial, it is for the trial judge *** to resolve any conflicts in the
       evidence.”). We may not second-guess the trial court’s judgment as to these matters.
       Jackson, 232 Ill. 2d at 280-81. Viewing this evidence in the light most favorable to the State,
       it was sufficient to prove that defendant shot Chris.
¶ 60       Defendant cites People v. Brown, 303 Ill. App. 3d 949 (1999), for the proposition that
       Chiestder’s and Davis’s statements were insufficient evidence to prove that he killed Chris.
       However, in Brown, “the only evidence” tying the defendant to the offense was a single,
       disavowed statement of an eyewitness. (Emphasis added.) Id. at 965. Moreover, the witness
       in that case waited two years to come forward with the allegedly incriminating information
       and testified that he only gave the police that information because they threatened to charge
       him with a drug offense. Id. Here, Chiestder’s and Davis’s statements were not
       uncorroborated. They corroborated each other and, as explained above, aligned with portions
       of Garland’s testimony. They were also corroborated by the location of Chris’s body. Unlike
       Brown, there was no substantial time gap between the incident and Chiestder and Davis
       giving their statements–Chiestder gave her statement less than two months after the shooting
       and Davis gave his less than one month after that. Likewise, Chiestder and Davis gave no
       reason why they lied in their prior statements like the witness in Brown. To the contrary,
       Chiestder provided a reason why she would lie in defendant’s favor: she said that she initially
       accused someone other than defendant because a person name “Outlaw” threatened to kill
       her if she did not. Therefore, we find that the evidence in Brown is distinguishable from the
       evidence in this case.
¶ 61       Based on the evidence the trial court heard, it could have rationally concluded, beyond a
       reasonable doubt, that defendant shot Chris. While the State’s evidence certainly included
       inconsistencies and contradictions, the trial court had the opportunity to consider those
       deficiencies in the State’s evidence along with the other evidence in the case. We cannot
       reverse the trial court’s judgment simply because the State’s evidence was conflicting. We
       affirm defendant’s conviction for the first-degree murder of Chris.

¶ 62                                       C. Presentence Credit
¶ 63       Finally, defendant asks us to correct his mittimus to reflect an additional 39 days he spent
       in custody prior to his sentencing. The State concedes that defendant is entitled to this credit.
¶ 64       Defendant is entitled to credit for each day he spent in custody prior to his sentencing.
       730 ILCS 5/5-4.5-100(b) (West 2012); People v. Hill, 2014 IL App (3d) 120472, ¶ 26.
       Defendant was arrested on October 29, 2007 and sentenced on November 15, 2012.
       Defendant thus accrued 1,844 days of credit against his sentence. But his mittimus only
       reflects 1,805 days of credit. We direct the trial court to correct the mittimus to reflect 1,844

                                                  - 13 -
       days’ credit.

¶ 65                                       III. CONCLUSION
¶ 66        For the reasons stated above, we reverse defendant’s conviction for the attempted
       first-degree murder of Maurice Webb. The State failed to present any evidence to support a
       conclusion that one of the individuals with whom defendant shared a common criminal
       design shot Webb. However, we conclude that the State presented sufficient evidence to
       convict defendant of the first-degree murder of Chris Willis. As the trier of fact, the trial
       court resolved any contradictions in the State’s evidence regarding Chris’s death and
       concluded that defendant shot him. Finally, we direct the circuit court to amend defendant’s
       mittimus to reflect 1,844 days of presentence custody.

¶ 67      Reversed in part, affirmed in part; mittimus corrected.




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