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People v. Benford

June 30, 2004


[6] Appeal from the Circuit Court of Cook County. Honorable Diane Cannon, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Hartman

[8]  Following a jury trial, defendant, Reginald Benford, was convicted of first degree murder for the shooting death of fellow gang member, Davon Cook. Defendant was sentenced to 40 years' imprisonment. On appeal, defendant questions whether: (1) he was denied effective assistance of counsel; (2) the circuit court considered the murder itself as an aggravating factor in sentencing; (3) his 40-year sentence is excessive; and (4) he was admonished properly.

[9]  Prior to trial, defense counsel informed the circuit court that he would be filing a motion to suppress defendant's inculpatory statement based on his "lack of ability to understand Miranda." The court ordered a fitness evaluation for that purpose. Dr. Stafford C. Henry, a staff psychiatrist for the court's forensic clinical services, evaluated defendant and informed the court by letter that "defendant was able to knowingly and intelligently waive his Miranda warnings."*fn1 At the subsequent court appearance the State suggested, and defense counsel agreed, that defendant should be evaluated as to his fitness to stand trial. Dr. Michael Rabin, a licensed clinical psychologist, evaluated defendant and advised the court by letter that defendant had a mildly mentally retarded level of intellectual functioning with a verbal IQ of 63.

[10]   On May 8, 2000, defense counsel moved to suppress defendant's statement. At the hearing, on September 5, 2000, counsel moved to withdraw his motion to suppress. Thereafter, the State successfully moved to exclude evidence of defendant's IQ and any statement regarding his "capacity to knowingly and intelligently waive his Miranda warnings."

[11]   During jury selection, the circuit court informed the jurors that defendant is presumed innocent until the State proves defendant's guilt beyond a reasonable doubt. The court inquired of the venire whether anyone would be unable to follow the law or sign a verdict form of not guilty if warranted by the evidence. There was no response from the venire. The court then asked questions of the individual jurors, sometimes inquiring whether they could be fair to both sides. Certain jurors informed the court they had been a victim of a crime or were involved in a legal case. In those situations, the court inquired as to whether that juror could be fair to both sides. Each selected juror answered affirmatively to the question of fairness. Defense counsel exercised three peremptory challenges during voir dire.

[12]   The evidence adduced at trial revealed that Cook was shot on August 18, 1998, at the intersection of 44th and Princeton Streets in Chicago. He died weeks later, on September 9, 1998. The State first called Kenneth McCullough to testify as an eyewitness to the shooting. McCullough, defendant and Cook were each members of the "Mickey Cobras" street gang for several years. On the day of the shooting, McCullough observed defendant, 21-years-old at the time, driving around in his blue, four-door Chevrolet with Minnesota license plates. He had seen defendant with Cook at the corner of 44th and Princeton earlier that day. At trial, McCullough denied witnessing the shooting and speaking to police at the scene immediately after. Instead, McCullough stated, he had been on the next block and the first time he spoke with police was when Detective Cliff Gehrke brought him to the police station, where he allegedly was beaten by detectives.

[13]   About one month after the shooting, Assistant State's Attorney (ASA) Maureen McGee and Detective Gehrke went to McCullough's home. They spoke to him about the shooting, and McCullough signed a statement penned by McGee. He testified that he signed the statement out of fear, and impugned the veracity of its contents. McGee testified for the State, wherein she published McCullough's written statement to the jury. The statement related that McCollough was present with Cook, both of whom were unarmed, when defendant drove up in his Chevrolet and exited. Cook and defendant walked toward each other. Defendant fired two shots at Cook, who fell to the ground. Gehrke also testified that he showed a photo array to McCullough about two weeks after the shooting, from which McCullough identified defendant as the shooter, and defendant's Chevrolet to be a car parked at 44th and Shields Streets.

[14]   The following day, Detective Gehrke brought defendant to speak with ASA Tom Mahoney. After speaking with Mahoney, McCullough testified before the grand jury. At trial, McCullough stated that his grand jury testimony was fabricated, motivated by his fear of police. Mahoney testified at trial and published McCullough's grand jury testimony to the jury. That testimony related essentially the same facts as McCullough's written statement: defendant pulled up in his car; he and Cook accosted one another; and defendant fired two shots at Cook, who attempted to move but was shot in the upper back.

[15]   The State also called as a witness Officer Frank Casale, who testified that he arrived at the scene shortly after Cook had been shot. Casale spoke to emergency personnel, then asked onlookers if they witnessed the shooting. He stated that McCullough "came up to [him] and told [him] that he was with the victim Cook at the time of the shooting," and that the shooter went by the nickname of "Reg." This was Casale's only conversation with McCullough.

[16]   Defendant was arrested by the FBI in Grand Rapids, Michigan, on December 30, 1998. He had been residing with his girlfriend and was arrested while exiting her apartment. Defendant was taken to a local jail where he was interviewed by FBI Agent Michael Heffron. According to Heffron, defendant told him that on the day of the shooting, he was driving a friend home when he reached the intersection of 44th and Princeton. There, he was approached by Cook, who was defendant's supervisor in the gang. Cook told defendant he would have to work security for the gang that night. Defendant explained to Heffron that this meant he was to stand on the street and yell "poe-poe" when he saw police. That day, Cook twice told defendant he would have to work security that night. Defendant briefly departed and drove to a nearby store. Upon returning to the area of the intersection, Cook again approached defendant. Using a .38 caliber revolver, defendant shot Cook and tossed the gun out of his car as he drove away.

[17]   Upon being returned to Chicago after his arrest, defendant made admissions to ASA Adam Monreal, who wrote a summary of the statements. Monreal published the summary to the jury through his testimony. The summary contained essentially the same facts as those recounted by Agent Heffron, who interviewed defendant in Michigan

[18]   The State rested and defendant moved for a directed verdict, which the circuit court denied. The defense presented one witness, defendant's girlfriend, Thymmberlie Stevenson. She stated that defendant had been afraid of Cook, and that the men argued several times a week during that summer because defendant sought to disassociate from the gang. Stevenson stated that Cook "was basically getting on [defendant] about not coming to service, not paying dues or doing security," and reiterated that Cook spoke with defendant almost every day about working security. She additionally stated that she and defendant recently had been threatened several times by members of defendant's gang.

[19]   Following argument and 45 minutes of deliberations, the jury found defendant guilty of first degree murder. At the sentencing hearing on November 13, 2001, the circuit court denied defendant's motion for new trial, and sentenced him to 40 years in custody of the Illinois Department of Corrections. Defendant timely appeals.

[20]   I.

[21]   Defendant claims on appeal that he was denied the effective assistance of defense counsel for failing to: (a) tender jury instructions on lesser-included offenses; (b) move to suppress his inculpatory statements; (c) object to the State's use of McCullough's prior inconsistent statement as substantive evidence; and (d) question the jurors about prejudice against street gangs and their ability to follow the basic legal principles.

[22]   Ineffective assistance of counsel is established when defendant shows (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that, but for counsel's shortcomings, a reasonable probability exists that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 104 S.Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 524-25, 473 N.E.2d 1246 (1984). Notably, this standard does not require that counsel's conduct more likely than not altered the outcome of the case (People v. Patterson, 192 Ill. 2d 93, 122, 735 N.E.2d 616 (2000)); instead, a "reasonable probability" is one "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A reviewing court must indulge in a strong presumption that counsel's performance was competent and that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063 (1998). If a claim of ineffectiveness of counsel may be disposed of on the ground that defendant did not suffer sufficient prejudice, the court need not decide whether counsel's errors were serious enough to constitute less than reasonably effective assistance under the deficiency prong. People v. Eddmonds, 143 Ill. 2d 501, 511-12, 578 N.E.2d 952 (1991).

[23]   A.

[24]   Defendant faults counsel for failing to tender jury instructions in support of the legal justification theory he advanced at trial. According to defendant, counsel theorized the murder was a result of either provocation or defendant's recklessness. He points to his opening statement, where counsel essentially conceded defendant's guilt, stating, "we don't have a whole lot of dispute over what took place on August 18 of 1998[,] in terms of what physically happened. [Cook] was there, [McCullough] was there, [defendant] was there. [Defendant] had a gun. And [Cook] was in fact shot. And he died as a result of that shooting. What we do think that is in dispute here is what led up to that shooting." Counsel told the jury that "[defendant] shot the weapon that day, but not with the intent to kill [Cook] or with an intent to do great bodily harm to [Cook]. But to get [Cook] to leave him alone, to back him off, to get him away."

[25]   This theory of justification, defendant argues, was advanced by counsel throughout trial. Counsel established provocation through Agent Heffron, that defendant had been confronted twice by Cook about working security and defendant refused; through ASA Monreal, that defendant and Cook had argued in the past, and that defendant carried a gun for protection; and ...

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