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June 16, 1993



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

CHARLES R. NORGLE, SR., District Judge:

 Before the court is Jarvis Brooks' ("Brooks") petition for a writ of habeas corpus. The petition is denied for reasons that follow.


 Brooks is a state prisoner attacking his conviction in the Circuit Court of Cook County for the murder of his ex-girlfriend Hershell Comier ("Comier"). Brooks was found guilty after a bench trial of murder and armed violence and was sentenced to twenty-five years in prison. The trial judge found Brooks not guilty under count I, which alleged Brooks intended to kill or do great bodily harm or that he performed acts knowing that the acts would cause death pursuant to ILL. REV. STAT. ch. 38, P 9-1(a)(1). However, the judge found Brooks guilty of murder under count II, which alleged Brooks committed acts which created a strong probability of death or great bodily harm to another in violation of subsection 9-1(a)(2).

 The evidence at trial established that Brooks' relationship with Comier ended approximately three months prior to Comier's death on September 17, 1987. Brooks was distressed about the break up with Comier and often thought of killing himself. The evidence showed that Brooks exhibited self destructive and violent behavior during the previous periods in which his relationship with Comier was broken up. He would often cut himself with a knife or other sharp object and had twice attempted to kill himself. Brooks did this in the presence of Comier, who would intervene by grabbing Brooks' arm or his knife.

 Robert Wilson ("Wilson"), Comier's uncle and Brooks' acquaintance of four or five years, was the only eyewitness to the incident in question other than Brooks. Wilson testified that Brooks drove with him to Comier's apartment between 6:30 and 7:00 after the two had played basketball together. Brooks told Wilson that he was going to pick up his daughter, who was in the custody of Comier. Although Wilson did not know it, Brooks was carrying a gun in his waistband. Brooks and Wilson went to the front door of the two-story apartment building where Comier lived and Brooks knocked on the door. Comier came from the second floor to the door and opened it. After Brooks told her that he had come to pick up his daughter, Comier went back upstairs and retrieved her. When Comier returned, Brooks asked her if anyone else was in the apartment, knowing that Comier had moved in with a new boyfriend just four days earlier, to which she responded "No." Wilson took Brooks' daughter back to the car and Brooks remained to talk with Comier. Comier and Brooks talked for five minutes and then walked together up the stairway.

 Wilson then testified that Comier called to Wilson from her window and requested that he come up and get Brooks. When Wilson arrived upstairs, Brooks was standing in the hallway in front of Comier's doorway, which was closed, and was yelling to Comier that he wanted to talk to her. Wilson persuaded Brooks to leave and the two walked out to the car. Wilson closed and locked the door to the apartment building.

 Wilson saw a police car in the vicinity of Comier's apartment and told the police what had happened. After inspecting the apartment, the police searched for Brooks. The search was ended, however, once it was learned that Brooks had turned himself in at the Eleventh District police station at approximately 8:15 p.m.

 Brooks testified at the trial. Brooks testified that he did not intend to kill Comier. He also substantially corroborated Wilson's version of the incidents leading up to the shooting. Brooks additionally testified that he walked to the back of the building and kicked open the rear door. He said he forced himself into the apartment in order to speak with Comier. Brooks testified that he was angry when he entered the apartment, but he possessed the gun in order to kill himself, not Comier. Brooks stated that he and Comier sat on a sofa in the front room as Brooks begged and pleaded with her to come back to him. Brooks testified that he then put the gun to his head and cocked the hammer, although he said he did not have his finger on the trigger. Comier stood up and pleaded for Brooks not to kill himself. According to Brooks, she then snatched the gun from his hand. Brooks claimed that, as he stood up to recover the gun, Comier turned and fell to the floor and the gun discharged. Brooks denied that the gun was in his hand when it went off and denied telling the police that the gun was in his hand when it went off. Brooks also denied that Wilson came up into the apartment. Brooks stated instead that he ran downstairs and told Wilson that Comier had been shot accidentally and that Wilson should call an ambulance and the police.

 Brooks disposed of the gun by throwing it on a roof at Marshall High School. He then turned himself in at the police station. Officer Lloyd Peterson testified that Brooks, when he turned himself in, said "I'm the one you are looking for. I just shot my old lady." Brooks and two police officers next searched for the weapon. After searching a few locations where Brooks indicated that he had thrown the gun, the officers drove to Marshall High School where they again conducted a search for the gun. A .38 caliber revolver was found at this time and was identified at trial. When found, the gun contained four live rounds and one spent shell and was missing part of its handle. It was established by stipulation that the bullet recovered from Comier's body was fired by the gun recovered by the police and identified by Brooks.

 On rebuttal, an officer McCaster also testified that Brooks stated to him "I shot my old lady." Another officer testified on rebuttal that he took a statement from Brooks after reading him his rights. He testified that Brooks told him that the gun was in his hand while he and Comier were struggling and when it went off. The officer also testified that there was no sofa in the front room ...

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