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12/07/87 the People of the State of v. Gerard Cooper

December 7, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GERARD COOPER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

518 N.E.2d 260, 164 Ill. App. 3d 734, 115 Ill. Dec. 735 1987.IL.1797

Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Following a bench trial, defendant Gerard Cooper was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)) and was sentenced to 20 years in the Illinois Department of Corrections. On appeal, defendant contends that: (1) he was not proven guilty of murder beyond a reasonable doubt; (2) at most, his conduct constituted involuntary manslaughter; (3) three prior consistent statements of the State's key witness were erroneously introduced; and (4) the trial court erred in denying his motion for a new trial based on newly discovered evidence. For the reasons set forth below, we affirm.

The record reveals that on August 18, 1984, at approximately 2:30 a.m., three youths, Frederick Harris, Larry Gilkey, and Shone Hill, exited a southbound train at the Roosevelt and State subway station in Chicago and were heading toward the stairway when they were approached by another group of boys, one of whom was defendant. Vincent Stepter, who was present at the scene, testified on behalf of the State that defendant flashed gang signs at Harris and then forced Harris to make a gang sign. Thereafter, defendant called for his fellow gang members and proceeded to strike Harris in his head. Hill and Gilkey fled up the stairs, while defendant and another youth named Jeremiah and Humphrey pursued Harris down the subway platform. When Harris reached the end of the platform and attempted to jump on the tracks, defendant kicked him in his back, causing him to fall on the third rail of the tracks, where he was electrocuted.

Charles Brown, another State witness, testified that he observed Humphrey and defendant chasing Harris. Once Harris reached the end of the platform, Brown saw defendant swing at Harris. He was uncertain, however, as to how Harris landed on the subway tracks. Similarly, Bryan Hoard testified that he observed defendant chase Harris and hit him on the shoulder, yet he did not see Harris fall onto the tracks. Gilkey and Hill were also unable to see what happened to Harris after they fled up the station stairs.

Defendant's case was based primarily on the testimony of Owen Lofton, whose presence at the scene was uncorroborated. Lofton stated that while defendant initially participated in the chase of Harris, he ceased when Harris reached the stairway. Lofton further testified that defendant did not kick Harris onto the tracks, but rather Harris slipped and fell on some water. Joel Larkings, the conductor of the train which eventually ran over Harris' body, stated, however, that he observed no water on the platform or on the tracks. State exhibits of the scene showed no such water as well.

Lofton also attested to meetings on August 18 at Grant Park, August 20 at the "beach," and August 21 at the 26th and California courthouse, between Stepter, Brown, and several other youths involved in the incident during which Stepter urged them to blame defendant for the offense. Both Brown and Stepter denied the occurrence of these meetings at trial.

Michael Nicholson testified for the defense that he did not see defendant chase Harris. Yet, Nicholson had previously submitted a written statement to defense counsel stating that defendant was in fact one of the boys who chased Harris.

After the trial court found defendant guilty of murder, defense counsel presented the court with a motion for a new trial based on newly discovered evidence. The motion was denied and defendant was sentenced to 20 years in prison.

On appeal, defendant initially contends that he was not proven guilty of Harris' murder beyond a reasonable doubt as the testimony of the State's key witness, Vincent Stepter, was incredible. Specifically, defendant claims that Stepter had motivation to lie because he was once a suspect in the case, he had a personal vendetta against defendant stemming from an incident on July 4, 1984, when defendant abandoned Stepter during a fight, and Stepter had received immunity from prosecution in the instant offense as well as had an unrelated robbery charge dropped by the prosecution in exchange for his truthful testimony at trial. Defendant additionally contends that there were numerous inconsistencies between Stepter's testimony and that of the other witnesses. This argument is without merit.

It is well established that a reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence and had the opportunity to observe the demeanor of the witnesses absent evidence so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt of defendant's guilt. (People v. Adams (1984), 129 Ill. App. 3d 202, 472 N.E.2d 135.) It is the function of the trier of fact, and not the court of review, to determine the credibility of witnesses and, where the ...


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