People v. Cook

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
• Citation: People v. Cook, 2018 IL App (1st) 142134, 99 N.E.3d 73 (Ill. App. 2018)
• Decision Date: 16 February 2018
• Docket Number: No. 1–14–2134,1–14–2134
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Bodey COOK, Defendant–Appellant.

2018 IL App (1st) 142134

99 N.E.3d 73

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Bodey COOK, Defendant–Appellant.

No. 1–14–2134

Appellate Court of Illinois, First District, Fifth Division.

Opinion filed February 16, 2018

Rehearing denied March 14, 2018

Michael J. Pelletier, Patricia Mysza, and Michael Gomez, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 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...