Appeal from the Circuit Court of Cook County Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
Following a jury trial, defendant Rory Cook was convicted of the first degree murder of Brian Keith Bell. The trial court sentenced defendant to 30 years in prison. On appeal, defendant contends that: (1) police obtained his inculpatory statements in violation of his Miranda rights; (2) the introduction of statements by co-defendant Darryl Bunch was improper because the remarks did not fall under the co-conspirator exception to the hearsay rule; (3) because the jury was instructed on self-defense, the trial court erred in suppressing evidence of Bell's prior violent behavior; (4) the trial court erred in failing to instruct the jury on the "serious provocation" theory of second degree murder; and (5) the evidence supported a conviction for involuntary manslaughter, as opposed to first degree murder. Because we reject all of these arguments, we affirm defendant's conviction and sentence.
Defendant's Motion to Suppress Statements
Defendant was charged with first degree murder under alternative theories: shooting Bell intentionally or acting with the knowledge that he created a strong probability of death or great bodily harm.*fn1
Before trial, the court heard testimony pertaining to defendant's motion to suppress his statements. In the motion, defendant asserted that he was not adequately informed of his Miranda rights and also alleged that police told him he would be charged with aggravated battery. At the motion hearing, Chicago police officer Robert Hodges testified that he was called to 11259 King Drive in Chicago at about 10:30 p.m. on April 3, 1999, in response to a report of gunfire. Upon arriving, he observed defendant on top of Bell, strangling him. While Officer Hodges and his partner transported defendant to Area 2 headquarters, his partner informed defendant of his Miranda rights. According to Officer Hodges, after the reading of his Miranda rights, defendant did not directly respond but instead was "combative and irate about the whole situation." On cross-examination, the officer stated that defendant's clothing was bloody and his eye was injured.
Chicago police officer David Zacek testified that he was called to the scene and helped pull defendant off Bell. The officer interviewed defendant at the police station at about 11:30 p.m. Officer Zacek advised defendant of his Miranda rights, and defendant did not respond. Instead, defendant continued to deny involvement in the shooting. On cross-examination, Officer Zacek stated that in addition to his reading of the Miranda warnings, his partner also advised defendant of his Miranda rights at the scene of the shooting. Defendant did not respond to the Miranda warnings but was "obnoxious, yelling and being combative." The parties stipulated that Officers Hodges and Zacek both would testify that defendant did not invoke his Miranda rights in their presence.
Chicago police detective Sylvia Van Witzenburg testified that she and her partner, Detective Robert Arteaga, were at the crime scene and that they interviewed Bell's girlfriend and also spoke with Dana Hunt, defendant's girlfriend. At about 5 a.m. on April 4, Detective Van Witzenburg and another detective interviewed defendant after advising him of his Miranda rights. Defendant indicated that he understood his rights. After defendant made a statement, Detective Van Witzenburg confronted defendant with inconsistencies in that account and left to speak with additional witnesses. When Detective Van Witzenburg returned at about 6:40 a.m., she spoke to defendant again and then left to locate Bunch.
Chicago police officer Robert Bartik testified that at about 10:45 a.m. on April 4, he informed defendant of his Miranda rights in preparation for administering a polygraph examination. Before the polygraph test began, defendant made incriminating statements to Officer Bartik and to a police detective; therefore, the polygraph test was not given. Officer Bartik denied telling defendant that he only would be charged with aggravated battery.
Detective Van Witzenburg testified that she and her partner interviewed Bunch and Hunt on April 4 and spoke with defendant again at about 9 p.m. Defendant and Hunt, with whom he lived, consented to a search of their apartment, where a weapon was recovered. Detectives Van Witzenburg and Arteaga interviewed defendant at about 11:30 p.m. and again at about 2 a.m. on April 5 in the presence of Assistant Cook County State's Attorney Tom Key.
Key testified that he asked defendant if he had been read his Miranda rights, and defendant responded that he had. Key readvised defendant of those rights before he and Detective Van Witzenburg interviewed defendant. At about 5:30 a.m., defendant indicated that he wished to make a statement to be handwritten by Key. Key presented defendant with a pre-printed form listing the Miranda warnings, and defendant signed his name below those warnings. Key wrote down defendant's statement. Key testified that defendant did not ask for an attorney or invoke any of his other rights under Miranda.
Defendant testified that on the day of the shooting, he began drinking beer and liquor at about 5 p.m. At about 10:30 p.m., he and Bell fought in front of defendant's apartment. Defendant said Bell struck him in the head with a hammer and that his eye was injured when he hit the pavement. Defendant testified that his head was bleeding badly and he was dazed and seeing double. Defendant stated that after he was transported to the police station and placed in an interrogation room, he spoke to a female detective. When the detective asked him if he wanted to tell her what happened, defendant told her he would like to see a lawyer. Defendant said the female detective left the room without responding. Defendant said a white male detective came into the room and told him to tell them the truth. A black male detective also entered and told defendant he had been charged with aggravated battery; that detective then left the room. Defendant said neither male detective informed him of his rights. Defendant said he told them he wanted to see the female detective, who took a statement from defendant and wrote it down. Defendant did not recall if he signed the statement, but stated that he passed out in the interview room after the detective left.
Defendant testified that when he was taken to another building for a polygraph test the next day, he was "badly beaten and hurting" and could not read a form he was given. Defendant said a detective read the form to him, and he told the detective he did not want to take the test without an attorney present. Defendant said he signed the form after he was told that the document memorialized his refusal to undergo the test in the absence of counsel.
Defendant was returned to police headquarters, where he met with Key, who took down his statement. Defendant said Key did not identify himself as an assistant State's Attorney. Defendant admitted signing the statement and initialing each page but said he signed the statement only because he thought he would not have a fair trial otherwise. Defendant said Key did not read him his Miranda rights and that the only time he was reminded of those warnings was by the man who was going to administer the polygraph exam.
On cross-examination, defendant acknowledged that between March 1986 and March 1998, he had 105 contacts with Chicago police and had stayed overnight in a police station about 65 times. When asked how many times he had been informed of his Miranda rights on those prior occasions, defendant responded about "45 percent" of the time. Defendant admitted signing the waiver of his rights but said he was in pain at the time and did not read the document because his eyes were badly damaged. Defendant said that at Cook County jail, he received Motrin and a bandage for his injuries. He also stated he did not understand his rights as Key read them to him. At the close of evidence, the trial court denied defendant's motion to suppress his inculpatory statements.
The State's Evidentiary Motions
Prior to trial, defendant's counsel indicated that self-defense might be raised as an affirmative defense. In that situation, a defendant is permitted to present evidence of the victim's aggressive and violent character, if such evidence exists, to demonstrate which party was the aggressor, pursuant to People v. Lynch, 104 Ill. 2d 194, 200-01, 470 N.E.2d 1018, 1020 (1984). The State filed a motion in limine seeking to bar the testimony of five police officers who would testify that Bell was charged with misdemeanor battery and three instances of domestic battery between 1991 and 1998 and provide an account of the events leading to those charges. The State argued that although evidence of the victim's character can be introduced per Lynch, those particular accounts of Bell's arrests would constitute hearsay. After an offer of proof, the trial court held that the testimony would be hearsay and also noted that the complaining witnesses did not appear in court proceedings to pursue charges against Bell. For those reasons, the trial court granted the State's motion in limine. However, the court allowed Bell's sister, Chovan Bell, to testify that in 1994, she called the police and signed a complaint against Bell after she and her fiancé received facial injuries.
The State also requested that the court allow into evidence certain out-of-court statements by Bunch under the co-conspirator exception to the hearsay rule, contending that those remarks were made in furtherance of the conspiracy to shoot Bell. Defense counsel objected to the admission of those statements, arguing that Bunch and defendant did not conspire to kill Bell but, rather, defendant killed Bell in self-defense while the two men argued and fought. Based upon the State's representation of what the evidence would show, the trial court ruled that the proffered remarks by Bunch qualified as co-conspirator statements.
The State's Evidence at Trial
At trial, Hunt testified on behalf of the prosecution. Hunt stated that she and defendant had been dating for four years and that in April 1999, they lived at 11259 King Drive. Hunt stated that defendant had let Bell move into the apartment below theirs because the building's owner disappeared and no tenants were paying rent. Hunt said defendant charged Bell to live in the unit, but she did not know how much defendant received from Bell.
On the day of the shooting, Hunt returned to the apartment between 3:30 and 4 p.m. and found that defendant and a friend, Garrett Scruthens, were drinking, and she joined them. At about 6 p.m., defendant left to buy alcohol. Hunt stated that defendant had to pass Bell's apartment to leave the building. By the time defendant returned, Bunch had arrived. After Bunch gave defendant $20, defendant left the apartment at about 7 p.m. to buy crack cocaine at an apartment in their building. Hunt said that for defendant to reach that apartment, he had to pass Bell's unit. About 10 minutes later, Hunt heard defendant arguing and fighting with Bell across the street. (Hunt would later testify that Bell had a hammer in his hand during this altercation.) Defendant returned to the apartment bleeding from a scrape on the right side of his forehead. Hunt, defendant, Bunch and Scruthens drank and smoked crack for one or two hours, and Bunch told defendant that defendant "should have stomped him." When defendant and Bunch left to buy more alcohol, Hunt went to Bell's apartment and gave him $10 that Bell had previously claimed defendant owed him.
Defendant and Bunch returned and they all began drinking again at 8:30 or 9 p.m. Hunt testified that Bunch told defendant, referring to Bell, that defendant "should have popped him - he should pop him." Bunch pulled a gun out, removed the bullets and reloaded them, and placed the gun on the table. Defendant replied that "he would if [Bell] kept f----- - with him." Defendant also said that if Bell started any trouble, he would put Bell "to sleep." Defendant took the gun and put it in his back pocket. Hunt testified that defendant "went to lock the door" and she heard defendant and Bell arguing again. Defendant pulled the weapon from his pocket and the men fought over it. Hunt turned to go up the stairs and heard shots fired. Hunt acknowledged her grand jury testimony that when defendant left the apartment, she thought he was going to confront Bell.
On cross-examination, Hunt said that the weekend before the shooting, Bell came to defendant and Hunt's apartment several times looking for defendant and threatening to "kick [defendant's] a--" if defendant did not repay Bell. Hunt stated that immediately before the shooting, Bell came to the door and defendant went into the hall and followed Bell downstairs. Hunt stated that the two men were pushing each other, and Bell dragged defendant into the hallway by his collar and defendant pulled the gun out.
Chicago police officer David Showers testified that when he arrived at the scene, Bell was lying on his back on the ground and defendant was on top of Bell choking him. Officer Showers pulled defendant off Bell. Defendant had blood on his hands and on the thigh portion of his ...