Gang rap videos' use in murder trial uncertain
URBANA — A judge has given a “we’ll see” ruling to lawyers who want to use two violence-laden gang rap videos in an upcoming Champaign County murder trial.
Champaign County Judge Tom Difanis ruled that the videos cannot be used as “substantive evidence” in the defense of Shamario Brown but it’s possible they could be used to impeach the credibility of state witnesses.
But whether that happens depends on what those witnesses say under oath.
Brown, 19, is scheduled to be tried Jan. 30 for the June 12 murder of Ericka Cox-Bailey, 30, of Champaign. She was mortally wounded about 8 p.m. that day by a shot from a passing car as she walked on Francis Drive near McKinley Avenue in Champaign. Authorities believe the bullet that killed her was intended for a member of a rival gang.
Besides Brown, two other men believed to be in the passing car were also charged with her murder: Oshay Cotton, 19, of Champaign, and Takario Greene, 19, of East Macon, Ga.
In pretrial motions Friday, defense attorneys Jamie Propps and Ben Dyer, of the public defender’s office, told Difanis they intend to present an alibi defense for Brown.
“He’s arguing the other guys are framing him and he’s the fall guy,” Dyer argued.
To advance their theory, they asked that the jury see videos discovered on YouTube by Champaign police in the summer of 2015 that depict Cotton and another potential state witness brandishing guns and threatening to kill rival gang members.
A police report said one of videos depicts seven members of the “Northwood” street gang, including Cotton and Deonta Rozier, 21, the latter of whom was found shot to death in a field north of Urbana last week.
Champaign County sheriff’s investigators are still looking for Mr. Rozier’s killer or killers.
“The threats issued by Cotton to hunt and shoot members of the rival gang mirror the allegations of this case: that an intended shooting of a rival gang member resulted in the killing of the victim,” Dyer wrote in his motion.
Assistant State’s Attorney Tim Sullivan objected to the use of the videos, saying they were made about a year before Miss Cox-Bailey’s death and calling them a “collateral matter” in Brown’s case.
“The only question is if they can be used for any sort of rebuttal for impeachment, and that’s premature since we don’t know what the witnesses are going to testify to,” Sullivan said. “If there is no evidence about gang affiliations, this video shouldn’t even be brought up.”
Difanis agreed, saying the issue could be revisited after the prosecution witnesses testify.
In other pretrial motions:
— Difanis denied a request by Propps to move the trial to another county due to pretrial publicity about Brown. Propps argued that much of what has been written about Brown’s prior criminal activity would not be admissible at his murder trial and would make it “extremely difficult, if not impossible” to find jurors who hadn’t heard about him.
Difanis said the question was not whether they could find jurors who knew nothing about him but whether those jurors could be impartial. “A lot of people just don’t read the paper anymore,” Difanis opined.
— Difanis denied a request by First Assistant State’s Attorney Steve Ziegler to find that a conflict of interest existed in the public defender’s representation of Brown since Assistant Public Defender George Vargas had called Brown a “dangerous criminal” in a newspaper advertisement he used in September in his unsuccessful campaign to unseat State’s Attorney Julia Rietz.
Vargas was critical of Rietz for her staff’s inability to convict Brown in previous trials for violent crimes. Difanis said no conflict existed since Propps and Dyer, not Vargas, are representing Brown.
— Difanis declined to suppress evidence of a .22-caliber bullet found in the car that Brown is alleged to have been in because police found it in a second search that occurred three days after the first search.
Propps argued that the chain of custody of evidence was compromised because the car had been towed away to an undisclosed location between the searches on June 13 and 16.
She argued that the state could not prove that the car had not been tampered with while it was not in the police department’s custody.
Sgt. Dennis Baltzell testified he had to remove the back seat of the car to find the small bullet.
Difanis ruled that the jury could decide what weight to give the circumstances surrounding the discovery of the bullet, which came after police found two spent casings, clothing and latent fingerprints in the first search.