People v. Cook
| Citation | 2021 IL App (3d) 190243,193 N.E.3d 807,456 Ill.Dec. 567 |
| Decision Date | 14 December 2021 |
| Docket Number | Appeal No. 3-19-0243 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Damon L. COOK Jr., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Thomas A. Karalis, and Editha Rosario-Moore, of State Appellate Defender's Office, of Ottawa, for appellant.
James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Jessica A. Theodoratos, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 Defendant, Damon L. Cook Jr., argues that (1) the State failed to prove him guilty beyond a reasonable doubt of unlawful use of a weapon by a felon (UUWF), (2) his conviction for aggravated unlawful use of a weapon (AUUW) violates the one-act, one-crime rule, and (3) the court erred in sentencing where (a) the court failed to consider his rehabilitative potential and placed undue weight on evidence of his other crimes and the seriousness of the offenses when sentencing defendant for being an armed habitual criminal (AHC), (b) imposed an extended-term sentence for UUWF, and (c) improperly considered a factor implicit in the offense of AHC in aggravation. We affirm in part and vacate in part.
¶ 3 The State charged defendant with being an AHC, a Class X felony ( 720 ILCS 5/24-1.7(a)(2), (b) (West 2016)); UUWF, a Class 2 felony (id. § 24-1.1(a), (e)); and AUUW, a Class 4 felony (id. § 24-1.6(a)(1), (3)(A-5), (d)(2)). The matter proceeded to a bench trial.
¶ 4 Sergeant Dirk Obermayer with the Will County Sheriff's Department testified that on July 19, 2016, at approximately 6:40 p.m., he observed a van that matched the description of a van involved in a recent shooting at a liquor store. Obermayer pulled behind the van while it was stopped at a gas station. The driver's seat was vacant, and Jordan Jervase was pumping gas. Obermayer requested that the three remaining occupants exit the van. After the occupants exited, Obermayer observed a firearm near the rear driver's side seat "in front and offset a little bit to the right." Obermayer explained, Obermayer identified the firearm as a loaded 9-millimeter firearm.
¶ 5 On cross-examination, Obermayer stated that, when he pulled behind the van, he saw defendant sitting in the back seat. At the time, defendant was not wearing a hat. Obermayer testified that Quinton Weekly, the individual sitting in the rear driver's side bucket seat would be closer to where the firearm was found. Dameon McCullum-Smith was seated in the front passenger seat. Defendant was sitting in the rear passenger bucket seat. The firearm was situated so that all of the occupants of the van would have equal access.
¶ 6 Deputy Thomas Hannon was with Obermayer when he pulled behind the van. Hannon observed the driver, Jervase, wearing a black shirt and black jeans. McCullum-Smith wore a white shirt and a dark pair of jeans. Weekly was shirtless and wore blue athletic shorts. Defendant wore a gray shirt and black athletic shorts. None of the individuals wore a hat. Hannon saw a red baseball hat "in front of the rear driver's side bucket seat nearest to the aisle" within reach of either rear seat passenger. Lieutenant Jason Elledge picked up the hat and uncovered a firearm. The hat had completely covered the firearm.
¶ 7 Detective David Welsh interviewed defendant on July 20, 2016, regarding the events that occurred the day before. At some point on July 19, 2016, defendant was with Jervase, McCullum-Smith, and Weekly and traveled to a liquor store. Jervase drove the van, McCullum-Smith sat in the front passenger seat, Weekly sat in the rear driver's side seat, and defendant sat in the rear passenger side seat. Defendant entered the liquor store to make a purchase. After defendant exited the store and Jervase left the parking lot, they realized they forgot to purchase something and returned to the liquor store. An individual in another van began shooting. Jervase drove from the scene to another location where police stopped them. Defendant denied wearing a red hat and possessing a firearm. While police searched the van, defendant observed a firearm located in front of the rear driver's side seat. Defendant said that McCullum-Smith was going to "take the hit for the [firearms]."
¶ 8 The parties entered an agreed stipulation to certified copies of defendant's three prior convictions for UUWF, Class 2 and 3 felonies, and AUUW, a Class 4 felony.
¶ 9 The parties stipulated that Deputy Adam Tapper would testify that while investigating a shooting on July 19, 2016, he reported to a liquor store at approximately 6:20 p.m. Tapper observed the store surveillance video from 6:10 p.m., which showed a parked van.1 A male exited the van and entered the liquor store. The man was wearing a gray shirt with a pink design on the front, dark pants, red and white shoes, and a red baseball hat. Two minutes later, the man exited the store and reentered the van. The front seat passenger in the van wore a white T-shirt. Tapper would testify that the van in the video matched the vehicle stopped by police. Further, the man entering the liquor store matched defendant's description from that day.
¶ 10 Further, the parties stipulated that Michelle Thomas, a forensic scientist with the Northeastern Illinois crime laboratory, would testify that she compared defendant's DNA with the DNA located on the recovered firearm and the red hat. In one sample taken from the firearm, Thomas identified three profiles, one being a major profile. The major profile identified excluded defendant as a contributor. The other two profiles were unsuitable for comparison. Thomas identified three DNA profiles on the red hat, finding the major profile matched defendant's DNA. The two other profiles were unsuitable for comparison.
¶ 11 The court found defendant guilty on all counts. In reaching its decision, the court found that defendant was identified as the individual on the surveillance video entering and exiting the liquor store wearing the red hat. When officers stopped the van, they located a firearm under that red hat. The hat covering the firearm contained defendant's DNA. The hat and firearm were in the rear passenger side area, closer to the driver's side, but still accessible to defendant. The court noted that exclusive possession is not required and, under the theory of joint possession, the act of covering the firearm with the hat showed that defendant knew the firearm was there and had the intent to exercise control over it.
¶ 12 On January 9, 2017, defendant filed a motion to vacate his conviction due to insufficient evidence. Specifically, defendant argued that the court improperly considered in its finding that a firearm had been fired from the vehicle that defendant occupied and that he wore a red hat that covered the firearm "some time on that day."
¶ 14 Defendant filed a motion for a new trial. Defendant alleged that he was denied his right to effective assistance of counsel where counsel failed to review discovery with defendant prior to trial.
¶ 15 The court held a hearing on defendant's motion for a new trial. Defendant testified that, if counsel had informed defendant of the DNA evidence, defendant "could have clarified how [the red] hat got taken off [defendant's] head." The court denied defendant's motion.
¶ 16 Prior to sentencing, the State charged defendant in a separate case with attempted murder for an incident that occurred on March 9, 2016.
¶ 17 The matter proceeded to sentencing. The court noted that it had received a presentence investigation (PSI). The State presented argument in aggravation and noted defendant's prior felony convictions.
The State informed the court that defendant could not receive 10 years’ imprisonment for AUUW, and the court changed the sentence to 6 years’ imprisonment. The court sentenced defendant to 10 years’ imprisonment for AHC and UUWF and ordered all of the sentences to run concurrently.
¶ 19 Defendant filed a motion to reconsider his sentence. Defendant argued his sentence was excessive because the court improperly weighed the factors in mitigation and erroneously considered his pending attempted murder charge. The court denied defendant's motion. Defendant appealed.
¶ 22 Defendant argues the State failed to prove him guilty beyond a reasonable doubt of UUWF because the evidence failed to establish that he constructively possessed the firearm found in the van.
¶ 23 When a defendant makes a challenge to the sufficiency of the evidence, " ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,...
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