People v. Cotton

• Decision Date: 20 July 2009
• Docket Number: No. 1-06-3354.,1-06-3354.
• Citation: 913 N.E.2d 578,393 Ill. App. 3d 237
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lavelle COTTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

913 N.E.2d 578

393 Ill. App. 3d 237

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lavelle COTTON, Defendant-Appellant.

No. 1-06-3354.

Appellate Court of Illinois, First District, First Division.

July 20, 2009.

Rehearing Denied August 21, 2009.

Patricia Unsinn, Deputy Defender, Adrienne River, Assistant Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, Cook County State's Attorney, James E. Fitzgerald, Samuel Shim, Michael Colonna, Assistant State's Attorneys, Chicago, IL, for Appellee.

Justice HALL delivered the opinion of the court:

The defendant, Lavelle Cotton, was charged with murder, attempted murder and aggravated discharge of a firearm in connection with the death of Timothy Thigpen. Following a jury trial, the defendant was found guilty and sentenced to a term of 60 years for murder and 10 years for aggravated discharge of a firearm. The defendant appeals his convictions and sentences.

On appeal, the defendant raises the following issues: (1) whether Aaron Cotton's testimony pursuant to a plea agreement denied the defendant due process; (2) whether the jury was improperly instructed on felony murder under the facts of this case; (3) whether the defendant's constitutional right to be present at his trial was violated; (4) whether the trial court erred in imposing the sentences in this case; and (5) whether the mittimus must be corrected. We affirm but modify the mittimus.

BACKGROUND

On November 15, 2002, Mr. Thigpen was a passenger in a van (the Diggs van) driven by Jeremell Diggs. Samuel Clark, Curtis Hicks, Venitta Page and Keshia Johnson were also passengers in the van. Shots were fired from another van into the Diggs van, striking and killing Mr. Thigpen. The defendant and his brother, Aaron Cotton, were later identified as the passenger and the driver of the van from which the shots were fired.

The defendant and Aaron were charged, inter alia, with first degree murder in connection with Mr. Thigpen's death under theories of intentional or knowing murder, murder by creating a strong probability of death or great bodily harm and felony murder based on the discharge of a firearm. The defendant and Aaron were also charged with attempted first degree murder and aggravated discharge of a firearm as to other individuals in the Diggs van.

The trial court severed the cases against the defendant and Aaron. After jury selection and prior to opening statements, the prosecutor informed the trial court that a plea agreement had been reached with Aaron. The trial court denied the defendant's motion for a mistrial. The court then accepted a guilty plea from Aaron. Thereafter, the trial court granted the defendant's renewed motion for a mistrial.

At the defendant's second trial, the following testimony pertinent to the issues raised on appeal was heard by the jury.

I. For the State

Samuel Clark testified that, on November 15, 2002, he was a passenger in a van owned and driven by Mr. Diggs. The other passengers were Curtis Hicks, Venitta Page, Keshia Johnson and Mr. Clark's brother, Mr. Thigpen. Around 2 p.m., Mr. Diggs stopped at a gas station to buy gas; the passengers got out to make purchases of snacks. Mr. Clark saw a tan and brown van (the Norris van) stopped at the stoplight at the corner. He recognized the van as belonging to a friend of his named Norris, He attempted to signal the driver because he wanted Norris to do some work for him. As he approached the van, he recognized the driver as Essay. Essay's real name was Aaron. Aaron's brother, Red, was also in the van. Mr. Clark identified the defendant as "Red." Mr. Clark knew both men from the neighborhood. Mr. Clark returned to the Diggs van.

As the Diggs van made a right turn out of the gas station onto State Street, Mr. Clark heard a shot. It sounded like it came from behind the van. As he looked back he saw the defendant hanging out the side window of the Norris van, shooting; Mr. Clark could see fire coming out of the barrel. There were too many shots to count. The Norris van followed the Diggs van as it proceeded south on State Street; shots continued to be fired from the Norris van. Mr. Clark heard Mr. Thigpen say that he was hit. Mr. Diggs then drove to Roseland Hospital. After leaving Mr. Thigpen at the hospital, Mr. Clark retrieved his own car and drove to the Norris residence to confirm who was driving the Norris van.

On cross-examination, Mr. Clark testified that he knew the defendant when he saw him with Aaron. He acknowledged that he did not stop to tell the police officers at the hospital who fired the shots at the Diggs van. He went to see Norris to make sure who was in the Norris van. He acknowledged that he did not speak to the police until the 18th or 19th of November. On redirect, Mr. Clark confirmed that the defendant was shooting from the passenger side of the Norris van. On re-cross-examination, Mr. Clark maintained that on November 18th he told Detective Fidyk that he saw the defendant shooting at the Diggs van.

Phillip Armstrong, a Chicago police officer, testified that on November 15, 2002, his partner, Officer Lanier Payne, and he were dispatched to Roseland Hospital to relieve another police unit that had been investigating a shooting. At the hospital, Officer Armstrong met Ms. Johnson and Ms. Page. As Mr. Thigpen was being transferred to Christ Hospital, the officers gave the women a ride to that hospital. The women were very upset and concerned about their friend. There was no opportunity to interview them about the shooting.

On cross-examination, Officer Armstrong testified that Ms. Johnston and Ms. Page did not tell him who the offenders were but that did not mean they did not know their identities. The women did not give him a description of the offenders.

Dr. Scott Denton, deputy chief medical examiner for Cook County and a forensic pathologist, testified that he conducted an autopsy on the body of Timothy Thigpen. Mr. Thigpen died from a gunshot wound to the head; the gunshot wound to his thigh was nonfatal. The death was certified as a homicide.

Aaron Schrod Cotton, the defendant's brother, testified that he was originally charged with Mr. Thigpen's murder and with attempted murder and aggravated discharge of a firearm in connection with other passengers in the Diggs van. According to a plea agreement reached with the State, Aaron pleaded guilty to conspiracy to commit murder for a recommended sentence of 12 years' imprisonment. Under the agreement, the State agreed to dismiss a pending robbery charge and place him in the State's Attorney's witness protection unit at the Cook County jail.¹ Under the agreement, Aaron would be placed in protective custody in the Department of Corrections. Aaron acknowledged that in exchange, he had agreed to testify truthfully in this case. He understood that if he did not testify truthfully, "the deal would be void." He understood that all of the dismissed charges would be reinstated. Aaron acknowledged his signature on the written plea agreement. Aaron further acknowledged that he had previous convictions for possession of a controlled substance and possession of cannabis. Aaron then testified as follows.

On November 15, 2002, at approximately 12 noon, Aaron borrowed a van from Norris Davidson. About an hour later, he picked up the defendant. The defendant sat in the front passenger seat while Aaron drove. They drove around for 45 minutes to an hour listening to the radio and talking.

Around 2 p.m., Aaron was proceeding east on 111th Street. While stopped in traffic waiting for the stoplight to change, Aaron looked over at the B.P. gas station on the corner and observed Mr. Clark gesturing to him. Mr. Clark walked to the sidewalk. When Aaron waved back at him, Mr. Clark threw his hand up and turned back. Aaron continue east on 111th Street but decided to return to the B.P. station to buy cigarettes. While trying to find a place to park at the gas station, he almost collided with a gray/black van.² While trying to park the van, Aaron noticed a man standing by the ice machine.

As the black/gray van was attempting to turn on to State Street, it stopped suddenly. Again, Aaron almost collided with it. While looking to see what had caused the black/gray van to stop suddenly, Aaron saw that the defendant had taken a gun from his waistband. Aaron was not aware that the defendant had a gun in his possession that day. The defendant lowered the window and began to fire, shooting at the black/gray van directly in front of them. As the black/gray van turned and drove south on State Street, Aaron followed them. The black/gray van went through a red light at 111th Street; Aaron followed it through the red light. The black/gray van turned west on 112th, a one-way street going east. Aaron followed the black/gray van the wrong way down 112th Street. When he got to Michigan Avenue, the defendant told him to let him out. The defendant took the gun with him. Aaron then drove north on Michigan Avenue.

Aaron parked the Norris van on Emerald Avenue. He flagged down a friend who drove him to Roseland Hospital. There he observed the black/gray van in the parking lot and recognized Mr. Clark's friends. After learning of Mr. Thigpen's death, he took the Norris van to a scrap yard and had it crushed. He retrieved the gun and disposed of it in a lake near Hammond, Indiana. He told Norris Davidson that he would pay him for the van and asked him to tell the police the van had been sold or stolen.

On cross-examination, Aaron denied telling defense counsel that he had seen Willie Diggs at a car wash on November 15, 2002. He denied that Mr. Diggs had told him that "guys were looking" for him. Aaron denied that he shot at the black/gray van. He denied disposing of the van and the gun to cover up what he had done and denied that he had been trying to blame the defendant for the shooting for a long time. He acknowledged that he had not told the truth until the State...