People v. Ware

• Decision Date: 20 May 2019
• Docket Number: No. 1-16-0989,1-16-0989
• Citation: 433 Ill.Dec. 226,2019 IL App (1st) 160989,131 N.E.3d 1071
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kato WARE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 160989

131 N.E.3d 1071

433 Ill.Dec. 226

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Kato WARE, Defendant-Appellant.

No. 1-16-0989

Appellate Court of Illinois, First District, FIRST DIVISION.

May 20, 2019

JUSTICE GRIFFIN delivered the judgment of the court, with 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 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 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 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 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, 288 N.E.2d 363 (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, 143 Ill.Dec. 239, 554 N.E.2d 174 (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, 327 Ill.Dec. 365, 902 N.E.2d 120 (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, 143 Ill.Dec. 239, 554 N.E.2d 174. The circuit court may decline to 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, 143 Ill.Dec. 239, 554 N.E.2d 174. 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, 216 Ill.Dec. 40, 664 N.E.2d 677 (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...