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April 29, 1994


Appeal from the Circuit Court of Cook County. Honorable Ralph Reyna, Judge Presiding.

McNULTY, Murray, Gordon

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

Roger Cook was indicted for first-degree murder in connection with the death of Lauren Whitewing (Lauren). Cook was convicted of second-degree murder and sentenced to eight years' imprisonment after a jury trial by the circuit court of Cook County. A timely notice of appeal was filed. Defendant requests that this court reverse and remand for a new trial on the charge of second-degree murder, or, in the alternative, reduce the sentence, or remand for resentencing.

Defendant makes five arguments: (1) the evidence was insufficient to sustain a conviction where the State failed to prove beyond a reasonable doubt that defendant was not justified in using deadly force; (2) the trial court's instructions to the jury regarding both the State's burden of proof and the use of defendant's prior conviction were improper; (3) defendant was denied effective assistance of counsel; (4) the cumulative effect of trial errors is prejudicial and warrants a new trial; and (5) the trial court imposed an excessive sentence.

At trial defendant made a motion in limine to prevent the jury from hearing testimony regarding a prior conviction less than ten years old. The court denied defendant's motion. Defendant also made a motion to allow evidence of Lauren's prior conviction for manslaughter which the court granted. At trial the parties stipulated that if called to testify the clerk of the Wisconsin state circuit court would testify that on May 14, 1986, Lauren was convicted of manslaughter and sentenced to a period of imprisonment in the Wisconsin prison system.

Burndetta Randolph testified that she and defendant lived together for about eight years and they had one daughter, Misty Cook. Ms. Randolph kept in contact with defendant and knew that he was going out with Lauren. On September 8, 1990, Ms. Randolph received a call at work from defendant at approximately 8:30 a.m. She testified that defendant told her he needed to talk to her and asked if she could go home. When she told him she was unable to leave, defendant called an hour later and asked again. This time she agreed. Ms. Randolph testified that when she got home defendant was already there. She asked him what was wrong and he told her that he had killed the girl he had been going out with. Ms. Randolph testified that defendant told her he hit Lauren a couple of times, she fell and he thought she hit her head on the bed. He picked her up and laid her on the bed. Ms. Randolph testified that defendant told her when he woke up the next morning Lauren was dead. Ms. Randolph further testified that she agreed to go to the police station with defendant after she got off of work so he could turn himself in.

Ms. Randolph testified that while she was with defendant before they went to the police station, he never said that Lauren had a boxcutter or knife with her. According to Ms. Randolph's testimony defendant did not tell her that he was afraid for his own life when he killed Lauren. Nor did he state that Lauren attacked him. She further testified that "we didn't go into great detail."

On cross-examination, Ms. Randolph testified that when she saw defendant he seemed very depressed but not angry. She also explained that when she spoke to defendant, their eleven-year-old daughter, Misty, was at home so she did not want to go into great detail. On redirect, Ms. Randolph testified that she did not notice any cuts or injuries on defendant's hands or face.

Lisa Rodriguez, Ms. Randolph's older daughter, was present when defendant admitted killing Lauren. Lisa Rodriguez testified that defendant told Lisa that he and Lauren got into an argument when she came over to his house in the middle of the night. Lisa's testimony as to defendant's version of the incident was consistent with Ms. Randolph's testimony. However Lisa's testimony added that defendant told her that because Lauren was sleeping with other men defendant told Lauren he did not want to see her anymore. Lisa testified that she did not remember defendant telling her about Lauren coming at him with a boxcutter knife.

On cross-examination, Lisa testified that she spoke to defendant approximately 30-45 minutes. Lisa further testified that defendant told her Lauren was drunk when she came to his house. According to Lisa, when they went to the police station, defendant was upset and crying.

Rudolph Rodriguez testified that on September 8, 1990, he was employed at the Leland Apartments located at 1207 West Leland in Chicago, Illinois. At approximately 12:40 p.m., some Chicago police officers arrived at the apartment building and informed him that there was someone dead in one of the apartments. Rudolph let the officers in room 533, defendant's apartment, where Rudolph saw a female on the bed who was not moving.

Chicago police officer Keith Uginchus, who on September 8, 1990, was assigned to the 23rd district, testified that on that day he and his partner, Tony Juarez, proceeded to 1207 West Leland after receiving an assignment of a possible "DOA." When they were let into apartment 533, they found the victim lying face up on the bed having sustained multiple bruises on her face, neck and arms. Officer Uginchus testified that there was no evidence of a struggle in the room. Officer Uginchus further testified that he and his partner surveyed the area next to the body and they did not recover a boxcutter on the bed, at the foot of the bed or anywhere in the room.

Officer Ronald Albee testified that on September 8, 1990, he was assigned to the 17th district tactical unit along with his partner, James Juhas. At approximately 12:30 p.m., one of the desk officers informed them that a person, later identified as defendant, wanted to turn himself in because he believed that he killed his girl friend. The officers took defendant to their office where they identified themselves and advised defendant of his constitutional rights. Officer Albee testified that defendant indicated he understood his rights and proceeded to state that he thought he killed his girl friend because he punched her and the next morning he woke up, and she was cold. Defendant further explained that he got into an argument with his girl friend, he punched her after which she fell and hit her head so he put her on the bed. Officer Albee did not recall defendant telling him that Lauren had a boxcutter knife during their argument. Officer Albee spoke with defendant about an hour.

Sergeant Daniel Sterling testified that on September 8, 1990, he was a detective assigned to Area 6 vice and narcotics. On that day, he was assigned to the 17th district in regard to a man who had turned himself in. Sergeant Sterling identified this man in court as defendant. Sergeant Sterling testified that during a conversation he had with defendant, and while Officers Juhas and Albee were present, defendant related the following: defendant lived with Lauren for three months but they broke up four or five days prior to this incident. On September 7, 1990, defendant went to a tavern located in his apartment building, where he ordered a beer. He saw Lauren sitting in the tavern and he went over to her, poured beer on her and told her to "cool off." He did not say why he did this. Defendant left and Lauren followed him and pushed him after which defendant slapped her and told her to leave him alone. Defendant went out drinking later and returned to the lobby of his building at approximately 1 a.m. when he saw Lauren with another individual. Defendant offered to fix her car for her if she would leave him alone. Defendant went to his apartment. Lauren followed him. Defendant told Sergeant Sterling that he grabbed Lauren by her hair and tried to push her out of the apartment. Sterling testified that defendant said Lauren picked up a boxcutter from a vanity near the door. Defendant grabbed Lauren's right arm and twisted it to get her to drop the boxcutter but when this failed, he punched her three or four times in the face and she dropped the boxcutter and fell to the floor. Sterling testified that defendant stated that Lauren appeared to be unconscious but he thought this was due to her drinking, so he picked her up and laid her on the bed. Defendant fell asleep in a chair and when he awoke the next day, Lauren was in the same position in which he put her. He wiped some blood from her mouth and face and off of the floor. He then attempted to feel for a pulse and found that her skin was cold. He then realized she was dead. Defendant told Sergeant Sterling that he left the building, went to his former girlfriend's home and later turned himself in at the 17th district.

Sergeant Sterling then testified that defendant was being taken to an Area 6 interview room when he noticed dried blood stains on defendant's gym shoes. When asked if that was in fact blood, and if it was Lauren's, defendant responded that it was and that "Lauren had been bleeding from the mouth."

Sergeant Sterling testified that he contacted the felony review section of the Cook County State's Attorney's office. Assistant State's Attorney Lustig responded and took defendant's statement. According to Sterling's testimony in this statement defendant added the fact that he punched Lauren two or three times in the chest before he punched her in the face. Defendant's statement was reduced to writing by Assistant State's Attorney Lustig after which defendant read and signed it.

Sergeant Sterling also testified to another conversation with defendant when Assistant State's Attorney Black was present during which time defendant was informed of the finding of strangulation by the medical examiner. In that conversation defendant stated that "the medical examiner must be wrong" and he denied strangling Lauren.

On cross-examination Sargeant Sterling testified that when Assistant State's Attorney Black was present defendant also told them he was afraid of Lauren Whitewing and that he was afraid she was going to cut him with a boxcutter. On cross-examination Sergeant Sterling also testified that every time he talked with defendant, defendant told him how the incident came about and the fact that there was a boxcutter involved. On redirect Sergeant Sterling testified that despite three conversations with defendant, defendant first mentioned that he was afraid of Lauren in the third conversation with Assistant State's Attorney Black present.

Officer Thomas Reynolds testified that on September 8, 1990, while assigned to the crime lab, he responded to the crime scene at 1207 West Leland, apartment 533. He recovered a boxcutter, located approximately 15 feet from Lauren's body. Officer Reynolds tested the boxcutter for fingerprints but found none. On cross-examination Officer Reynolds explained ...

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