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People v. Cook

Court of Appeals of Illinois, First District, Fifth Division

February 16, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BODEY COOK, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 11 CR 3147 Honorable Mary Margaret Brosnahan, Judge, presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.

          OPINION

          LAMPKIN JUSTICE.

         ¶ 1 Defendant Bodey Cook was found guilty by a jury of first degree murder and aggravated battery with a firearm. He was sentenced to consecutive prison terms of 30 years and 15 years, respectively.

         ¶ 2 On appeal, he contends (1) the trial court abused its discretion by admitting hearsay and allowing the State to misrepresent the evidence during closing argument, and this constituted plain error because the evidence was closely balanced or, in the alternative, trial counsel was ineffective for failing to preserve these errors; (2) the trial court abused its discretion during voir dire by questioning a biased juror until she said she would be fair and preventing the defense from probing the juror's bias, and trial counsel rendered ineffective assistance by failing to use an available peremptory challenge to dismiss this juror; and (3) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's pro se claims of ineffective trial counsel.

         ¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 4 I. BACKGROUND

         ¶ 5 This case arose from a drive-by shooting that occurred on the evening of Thursday, August 19, 2010. Gunshots fired from a car struck and killed Roger Kizer and struck Estavion Thompson, who survived the attack. Eyewitnesses identified defendant Bodey Cook as the driver and codefendant Marcellus French as the shooter. French was arrested January 20, 2011, and defendant was arrested February 16, 2011. In 2013, defendant and French were tried jointly before a single jury.

         ¶ 6 At the trial, the State's evidence showed that, at about 11 p.m. on the date of the offense, the victims Kizer and Thompson were outside near 7450 South Kenwood Avenue in Chicago. Kizer's family lived on that block. Kizer and Thompson were either sitting on the back of a friend's parked car or standing by the car in the street. Several other people were also outside, including Andre Stackhouse, Shevely McWoodson, and Sherman Johnson. People were drinking alcohol. The street was residential and illuminated by streetlights.

         ¶ 7 Thompson had "only a cup" of alcohol and could not recall whether people were smoking or selling marijuana. Thompson saw defendant drive a small greenish turquoise Chevrolet Cavalier down the street past Thompson's group and stop at a stop sign. Defendant was alone in the car. Thompson had known defendant from the area for about three years. About 15 minutes later, defendant, who was still alone, drove toward Thompson's group a second time. Kizer tried unsuccessfully to wave or "flag [defendant] down." Kizer told Thompson he wanted to talk to defendant about "what was going on between" defendant and Kizer's family. About 10 minutes later, defendant drove toward the group a third time but Thompson did not see him approach because Thompson's back was facing defendant's car. Thompson heard gunshots and saw Kizer fall. Thompson tried to run but fell. He was shot in his legs, chest, and stomach. He could not get back up so he crawled to the grass by the sidewalk side of a parked car. As he lay on the grass, he saw that defendant drove the car and the shooter in the passenger seat was a light-skinned male wearing a red hat. The police, however, did not recall Thompson giving that description of the shooter. Thompson also testified that the shooter yelled "bi*** something" as the car drove away. Kizer died at the scene from a gunshot wound to his chest, and Thompson was taken to the hospital.

         ¶ 8 Thompson spoke with detectives at the hospital the next day and identified defendant as the driver from a photo array. At that time, Thompson did not know defendant's full name. Two days later, on August 22, Thompson viewed a black and white photo array that included French's photo, but Thompson did not identify anyone as the shooter from that array. At that time, Thompson knew French's name but not his full name. At the trial, Thompson said French at the time of the shooting "looked totally different" from his black and white picture in the photo array. Thompson could not remember whether he told the police on August 22 that French was the shooter. On January 20, 2011, Thompson went to the police station and identified French, whom Thompson knew "from around the same area, " out of a four-person lineup as the shooter. Witnesses Stackhouse, McWoodson, and Johnson were also at the police station, but they were not present when Thompson viewed the lineup. In February 2011, Thompson identified defendant from a lineup as the driver. Thompson also identified defendant and French in court as the offenders.

         ¶ 9 Thompson testified that no one made him any promises in exchange for his testimony. At the time of the trial, he had a pending misdemeanor marijuana charge and prior felony convictions in 2005 for resisting a police officer and aggravated battery of a police officer and in 2004 for aggravated unlawful use of a weapon. When Thompson testified before the grand jury on February 16, 2011, he said he was under the influence when he had spoken with an assistant State's Attorney (ASA) in January 2011; however, at the trial Thompson denied being under the influence at the time of that conversation.

         ¶ 10 Andre Stackhouse was on parole at the time of the trial, failed to appear on the date specified by a subpoena, and was arrested and testified the next day. He had known both defendant and French since they were in preschool. Stackhouse had been drinking tequila on the night of the shooting. He was standing a couple of houses away from the Kizer home and talking with two girls when he saw defendant drive by in a greenish blue car alone. Not long thereafter, Stackhouse saw defendant drive east on 74th Street and then south on Kenwood Avenue. French was in the passenger seat, and half of his body was hanging out the window. He had a gun in his hand. Stackhouse did not see anyone in the car wearing a hat. Stackhouse moved into a gangway and heard several gunshots but did not look toward the shooting. After the shooting, he went to Kizer and Thompson and saw that they were shot. Sherman Johnson had a gunshot hole in his hat. Stackhouse left the scene and did not talk to the police that night.

         ¶ 11 On August 24, 2010, Stackhouse was arrested for a gun offense. He spoke with detectives on August 26 about the August 19 shooting. From photographs, Stackhouse identified defendant as the driver and French as the shooter. Stackhouse also identified defendant and French as the offenders in the lineups conducted in January and February of 2011 and again at the trial. Stackhouse did not receive any promises concerning his gun offense or his probation violation in exchange for his testimony. He faced a possible prison sentence of three to seven years for the gun offense and received the minimum sentence of three years. He had convictions in 2011 for aggravated unlawful use of a weapon and in 2009 for possession of a stolen motor vehicle. When a defense investigator came to the Stackhouse home in June of 2012, Stackhouse's mother told the investigator to leave, and Stackhouse did not discuss the shooting with him.

         ¶ 12 Shevely McWoodson was Kizer's uncle. At the trial, McWoodson testified he had known defendant and French a few months prior to the shooting by seeing them on the street a few times. However, McWoodson previously told the grand jury that he had known French for about three years. At the time of the offense, McWoodson was with Kizer and a group of other people on south Kenwood Avenue talking. McWoodson saw defendant drive by once in a small car alone. Then McWoodson walked to his house a couple of houses away from the group to use the restroom. When he was near the gate of his house, he saw defendant drive by again with French in the passenger seat. McWoodson saw French lean out the window, fire a gun, and shoot Kizer. McWoodson heard three gunshots and saw the gun emit flames when it was fired. He did not speak with police that night.

         ¶ 13 In January 2011, McWoodson went to the police station and identified defendant from a photo array as the driver and French from a lineup as the shooter. At trial, McWoodson testified that he "pointed [French] out" before he asked the police to have everyone in the lineup smile. McWoodson knew French had a chipped tooth, which was visible when he smiled. However, according to McWoodson's grand jury testimony, he "knew" it was French but was not "sure, " so he asked the detective to make the lineup participants smile and then saw French's chipped tooth and said, "That is him." At a second lineup in February 2011, McWoodson identified defendant as the driver, but McWoodson did not recall returning to the police station to view that second lineup. Also, McWoodson either did not understand what a grand jury was or did not remember testifying before the grand jury in February 2011.

         ¶ 14 Sherman Johnson was Thompson's cousin. Johnson had known defendant and French for Johnson's whole life. At the trial, Johnson testified that on the afternoon of August 19, 2010, everyone was standing in front of a school when Kizer unsuccessfully attempted to flag down defendant, who was driving a red Cadillac. Later that evening, Johnson was standing with the group on the 7400 block of south Kenwood Avenue. About 30 people were outside, and they were drinking alcohol and doing drugs. He heard gunshots and ran from the scene without looking to see the source of the gunfire. He never saw who fired the gunshots, was not grazed on his elbow by a bullet, and did not have a bullet knock any hat off his head.

         ¶ 15 Johnson fled Chicago a week after the shooting because he was wanted for an attempted murder that occurred in an unrelated case on August 25, 2010. He was apprehended and extradited back to Chicago on January 19, 2011. Thereafter, the detectives investigating the instant case brought him from the jail to the police station. Johnson claimed the detectives put him in a room with Thompson and urged him to "go with" Stackhouse's written statement. Johnson also claimed the police offered to help him with his pending case in exchange for his cooperation in this matter. Johnson denied or could not recall giving the police and ASA any statement. Johnson initially maintained he did not recall testifying before the grand jury in February 2011, later admitted on cross-examination that he did in fact testify before the grand jury, and then on redirect claimed again that he did not recall testifying before the grand jury. He denied identifying defendant and French as the offenders and merely pointed them out in the photo arrays as people he knew. Johnson denied identifying defendant and French as the offenders in lineups conducted in January and February of 2011. Ultimately, Johnson pled guilty in his pending case in 2012 to a lesser charge of aggravated battery with a firearm, faced a possible sentence of 6 to 30 years in prison, and received a 7-year prison term without the detectives' help.

         ¶ 16 The State impeached Johnson's trial testimony with the testimony of detectives and the ASA; Johnson's January 21, 2011, signed written statement; his February 18, 2011, grand jury testimony; and a January 2011 photograph of his elbow. According to his signed statement, Johnson saw defendant drive by in a light green Chevy Cavalier. Defendant was alone, and Kizer called out defendant's name to get his attention. Kizer's cousins had a "beef" or argument with defendant. Defendant did not stop and sped off. When defendant drove by again about 15 to 30 minutes later, French was hanging out the passenger's-side window. The upper part of French's body was hanging out the window, and a gun was in his hand. French fired the gun several times. The detectives testified that Johnson identified defendant as the driver and French as the shooter in photo arrays in January 2011, identified French in a January 2011 lineup, identified defendant in a February 2011 lineup, and was never told he would receive help in any pending case in exchange for talking about this case.

         ¶ 17 When ASA Morgan Creppel interviewed Johnson before presenting his testimony to the grand jury in February 2011, Johnson confirmed that the police and detectives never made any promises to him in exchange for his cooperation. According to Johnson's grand jury testimony, he was standing with Kizer and Thompson on south Kenwood Avenue at the time of the offense. Kizer's cousin, who was selling marijuana, got into a truck with a buyer. As the truck drove away, the group noticed defendant, who was alone, follow the truck in a light turquoise Cavalier. When Kizer's cousin returned in the truck, defendant, who was still alone, was still following the truck. Kizer tried to flag defendant down, but defendant sped off. No one in the group noticed defendant's car as it approached them the third time. Johnson heard the first gunshot and looked in the direction from which the sound came. Johnson was shocked, "actually just got stuck, " and "couldn't even move." He saw French hanging out of the passenger's side window of the car from his waist up, using the top of the car to try to balance himself, and pointing the gun at anybody and shooting. Defendant was driving the car. Johnson saw Kizer get struck first and Thompson get struck next. Then bullets grazed Johnson's elbow and knocked his hat off his head.

         ¶ 18 Codefendant French called two alibi witnesses, Romania Booker and her father Randy Alexander, who testified that French was with them at the time of the shooting. They were at the home of Booker's grandmother. Booker was pregnant with French's child, and her due date was August 19, 2010, so French stayed with her in case her water broke. Alexander testified that he and French stayed inside the house on August 19 but acknowledged they "were not joined at the hip." Alexander was convicted in 2011 of burglary and in 2007 of possession of a controlled substance. Booker testified that French remained by her side from noon on August 19 until the child was born on August 24. Booker stopped dating French before he was arrested in January 2011 in this case. Although Booker knew about the arrest, she never contacted the police to inform them of this alibi. French's family helped Booker with expenses for the baby.

         ¶ 19 Defendant presented five family members to testify to his alibi that he was at his aunt's house at the time of the shooting. His family held a large surprise party for the aunt's 61st birthday, which lasted from about 6 p.m. on Thursday, August 19 until about 3:30 a.m. on Friday. The party was unplanned, and no invitations or emails were sent. They celebrated on Thursday because, contrary to her recorded birth date, that Thursday was the aunt's actual birth date. Also, defendant's sister, whom the family rarely saw, was in town visiting but returning to Birmingham on Friday.

         ¶ 20 Defendant's five alibi witnesses were his two sisters, Hagar and Sirena Crosby; his father, Jewell Crosby; his aunt, Sarma Jean Harris-Stewart; and his uncle, Peter Crosby. They testified that defendant had been staying with Sirena and her children in Carpentersville about a week before the party. Hagar picked them up in the morning on August 19 and drove to the aunt's house by about noon to get the house ready for the party. While Hagar and Sirena shopped for food and party supplies, defendant stayed at the house with his aunt and father. Defendant was still at the house when Hagar and Sirena returned a few hours later. The witnesses testified that they saw defendant during the course of the entire party, eating, drinking, and playing music and card games. At 11 p.m., everybody was singing happy birthday to the aunt. When Hagar left at about 1:45 a.m., defendant was drunk and asleep on the couch. Defendant slept at his aunt's house that night and woke up at 7 or 8 a.m., and his aunt made him pancakes. Defendant did not have a car and no one knew how he returned home. When certain witnesses learned that defendant was arrested in February 2011 for murder, they did not alert the police that defendant had an alibi.

         ¶ 21 Defense Investigator John Byrne testified that he had been a Chicago police detective and sergeant in the detective division for 25 years. When he went to Stackhouse's home in June 2012, he informed Stackhouse that he worked for the defense. Stackhouse agreed to speak with him about this case and invited him into the house. Byrne was at the house for about 30 minutes but did not make any video or audio recording. Byrne took notes during the interview, which he used to write his two-page, undated report and then destroyed the notes. According to Byrne, Stackhouse said he did not see the face of either the shooter or driver when the car drove past him because it was dark outside and the incident happened quickly. Stackhouse merely saw the passenger extend an arm out the open window and fire a gun. Furthermore, in January 2011, detectives signed Stackhouse out of jail, brought him to the police station, and informed him that witnesses had already identified defendant as the driver and French as the shooter. The detectives said they would help Stackhouse with his pending case if he corroborated the testimony of those witnesses. Although Stackhouse told the detectives what they wanted to hear, they ultimately did not help him. Stackhouse mentioned his probation and asked Byrne if he could get in trouble for what he said during their interview. Stackhouse did not sign or review Byrne's report.

         ¶ 22 The jury found defendant guilty of the first degree murder of Kizer and guilty of the aggravated battery with a firearm of Thompson. The trial court sentenced defendant to consecutive prison terms of 30 years for murder and 15 years for aggravated battery with a firearm. The jury also found French guilty of first degree murder and aggravated battery with a firearm.

         ¶ 23 II. ANALYSIS

         ¶ 24 On appeal, defendant argues that (1) the trial court abused its discretion by admitting hearsay-i.e., that Kizer wanted to stop defendant's car and talk to him about something going on between Kizer's family and defendant-and allowing the State to misrepresent the evidence during closing argument; (2) the trial court abused its discretion during voir dire by badgering a biased juror into saying she would be fair and preventing defense counsel from making further inquiry into that juror's bias, and trial counsel rendered ineffective assistance by failing to use an available peremptory challenge to dismiss that juror; and (3) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's claims of ineffective trial counsel.

         ¶ 25 A. Hearsay, Prior Inconsistent Statement, and Rebuttal Closing Argument

         ¶ 26 Defendant contends that the trial court abused its discretion when it admitted double hearsay during Thompson's testimony that Kizer told him Kizer wanted to stop defendant's car and talk to him about "something" that was "going on" between him and members of Kizer's family. Defendant also contends the trial court erred when it admitted as substantive evidence a statement from Johnson's signed written statement to the police and ASA-i.e., that Kizer's cousins were having a "beef" with defendant-because the statement was not inconsistent with Johnson's trial testimony and did not narrate any event about which Johnson had personal knowledge. Defendant also argues that this hearsay motive evidence was irrelevant and the State failed to link it to defendant or lay any foundation for its admission. Finally, defendant argues that the State committed prosecutorial misconduct by (1) misstating the evidence to argue that defendant had a motive to kill Kizer because defendant had a "beef" with Kizer and (2) arguing without any supporting evidence in the record that Johnson disavowed at the trial his prior statements identifying defendant and French as the offenders because Johnson was afraid of them.

         ¶ 27 Defendant acknowledges that he has forfeited review of these issues by failing to both timely object and include these issues in his motion for a new trial. However, he asks us to review this issue under the plain error doctrine, arguing that the evidence was so closely balanced that the errors severely threatened to tip the scales of justice against him.

         ¶ 28 In general, a defendant preserves an issue for review by timely objecting to it and including it in a posttrial motion. People v. Denson, 2014 IL 116231, ¶ 11. However, we may review claims of error under the plain error rule (Ill. S.Ct. R. 615(a)), which is a narrow and limited exception to forfeiture (People v. Hillier, 237 Ill.2d 539, 545 (2010)). To obtain relief under this rule, defendant must show that a clear or obvious error occurred. Id. Defendant bears the burden of persuading the court that either (1) the evidence at the hearing was so closely balanced (regardless of the seriousness of the error) as to severely threaten to tip the scales of justice against the defendant or (2) the error was so serious (regardless of the closeness of the evidence) as to deny the defendant a fair trial and challenge the integrity of the judicial process. People v. Herron, 215 Ill.2d 167, 187 (2005). In order to determine whether the plain error doctrine should be applied, we must first determine whether any error occurred. Id.

         ¶ 29 A trial court's evidentiary rulings on hearsay testimony are reviewed for an abuse of discretion, which occurs when the trial court's ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the view adopted by the trial court. People v. Caffey, 205 Ill.2d 52, 89 (2001). Defendant argues that the determination of whether a specific statement is hearsay is purely a legal question reviewed de novo. Although reviewing courts sometimes review evidentiary rulings de novo, this "exception to the general rule of deference applies in cases where 'a trial court's exercise of discretion has been frustrated by an erroneous rule of law.' " Id. (quoting People v. Williams, 188 Ill.2d 365, 369 (1999)). "The decision whether to admit evidence cannot be made in isolation. The trial court must consider a number of circumstances that bear on that issue, including questions of reliability and prejudice." Id. In this case, the trial court exercised discretion in making these evidentiary rulings because the court based its rulings on the specific circumstances of this case and not on a broadly applicable rule. See id. at 89-90. Accordingly, we review these evidentiary rulings with deference to the trial court.

         ¶ 30 Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matters asserted. People v. Sullivan, 366 Ill.App.3d 770, 779 (2006).

"The term matters asserted as employed in the definition of hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express. When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay. The declarant necessarily intends to assert (i.e., implicitly asserts) matters forming the foundation for matters directly expressed in the sense that such additional matters must be assumed to be true to give meaning to the matters directly expressed in the context in which the statement was made. [Citation.] To illustrate, the question 'Do you think it will stop raining in one hour?' contains the implicit assertion that it is currently raining." (Emphasis in original.) Michael H. Graham, Cleary and Graham's Handbook of Illinois Evidence § 801.1, at 635-36 (6th ed. 1994).

         ¶ 31 The presence or absence in court of the declarant of the out-of-court statement is irrelevant to a determination as to whether the out-of-court statement is hearsay. People v. Lawler, 142 Ill.2d 548, 557 (1991). Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant. Caffey, 205 Ill.2d at 88.

         ¶ 32 1. Thompson's Testimony

         ¶ 33 According to the record, Thompson testified that when defendant drove toward the group the second time, Kizer tried unsuccessfully to flag him down. When the prosecutor asked Thompson if Kizer told him why Kizer tried to stop defendant, defendant's counsel raised a hearsay objection. The prosecutor argued that the testimony was being elicited to prove motive and was not hearsay. Defendant's counsel responded that motive was not a hearsay exception, the statement was not made in the defendant's presence, it might be speculation, there was no foundation, and admission would violate defendant's right to confront witnesses. Codefendant French's counsel joined the objection. The trial court overruled the objections, found the testimony was not hearsay because it was not offered for the truth of the matter asserted, and allowed the testimony to explain the course of conduct. The trial court added that very often the statements of victims made just prior to their murder were admissible. Thompson then testified that Kizer said he wanted to stop defendant to talk "to him about what was going on between, something that his family and whatever, whoever has going on."

         ¶ 34 We find that the trial court erred in admitting Thompson's hearsay testimony that Kizer said he wanted to stop defendant to talk to him about something that was going on between defendant and Kizer's family. Contrary to the trial court's ruling, the statement was not admissible for the non-hearsay purpose of explaining the course of conduct because Kizer's out-of-court statement cannot be used to explain Kizer's own conduct. See People v. Carroll, 322 Ill.App.3d 221, 223 (2001) (statements offered for their effect on the listener or to explain the subsequent course of conduct of another are not hearsay).

         ¶ 35 Furthermore, we cannot agree with the trial court's ruling that the statement was not hearsay because it was offered for some reason other than to prove the truth of the matter asserted. Kizer's statement that he wanted to stop the car to talk to defendant about something contains the implicit assertion that Kizer believed he observed defendant in that car. This is not a situation where the out-of-court statement was relevant simply because of the fact it was said. E.g., People v. Poe, 121 Ill.App.3d 457 (1984) (testimony that the witness spoke to the defendant over the telephone at a given time was offered as an alibi and thus was not hearsay); People v. Shoultz, 289 Ill.App.3d 392, 395-96 (1997) (a statement offered to prove the listener had notice of the information contained therein was not hearsay). Here, the relevance of the implicit assertion in Kizer's out-of-court statement depends on Kizer believing that it was true, so it was offered for the truth of its content that defendant was in the car and therefore is hearsay. Similarly, Kizer's directly expressed assertion that he wanted to talk to defendant about something that was going on between defendant and Kizer's family is also relevant only for the truth of its content.

         ¶ 36 We conclude that the admission of Thompson's hearsay testimony was error and will address below whether this error constitutes plain error.

         ¶ 37 2. Johnson's Prior Inconsistent Statement

         ¶ 38 According to the record, information similar to Thompson's hearsay testimony came before the jury again, without any objection from defense counsel, when the State confronted Johnson with portions of his signed written statement to the police and ASA, i.e., that Kizer tried to get defendant's attention by calling out his name and that Kizer's cousins were having a "beef" or argument with defendant. Although Johnson denied making the signed statement, the State perfected its impeachment of Johnson during the testimony of Detective Clifford Martin, wherein the relevant excerpts of Johnson's written statement were admitted into evidence.

         ¶ 39 Defendant argues that Johnson's prior statement that Kizer's cousins were having a "beef" with defendant was not admissible as substantive evidence because it was not inconsistent with Johnson's trial testimony and he ...


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