People v. Cook ( 2020 )

2020 IL App (1st) 180711-UNo. 1-18-0711
Order filed February 25, 2020.
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 2014 CR 6603
)
HAROLD COOK, ) The Honorable
) William H. Hooks,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court.
Justices Pucinski and Coghlan concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for first degree murder is affirmed where the trial court
applied the correct legal standard and rationally concluded that defendant failed to
establish a mitigating factor for second degree murder.
¶2 Following a bench trial, defendant Harold Cook was found guilty of six counts of first
degree murder and sentenced to 45 years’ imprisonment. He appeals, claiming that the trial court
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erroneously convicted him of first degree murder because he made the required showing for second
degree murder and the court applied the wrong legal standard. We affirm.
¶3 Defendant was charged by indictment with six counts of first degree murder. 720 ILCS
5/9-1(a)(1), (2) (West 2014).
¶4 Chicago police officer Thomas Harris testified that on March 14, 2014, he was in
plainclothes driving an unmarked vehicle on Pulaski Road near Van Buren Street at approximately
12:45 p.m. He noticed a crowd of 25 to 30 people forming around a fight between two men. Harris
was 50 feet away with an unobstructed view. When the fight stopped, he heard a gunshot. He
looked in the direction of the sound and saw a man shooting at one of the fighters, both of whom
were unarmed. Harris identified the shooter as defendant in court.
¶5 Defendant fired several more shots, then walked towards Pulaski and entered a vehicle
occupied by two women. His firearm was in a slide-lock position, indicating that he had fired every
bullet in the clip. Harris reported the incident by radio and followed the vehicle. After defendant
exited at a red light on Pulaski, other police vehicles arrived, and Harris helped the officers arrest
defendant.
¶6 On cross-examination, Harris stated that the Pulaski and Van Buren area had gang activity
in the past. In his experience, gang members sometimes carry firearms. When the fight ended, the
two men did not shake hands. The gunfire started 10 to 15 seconds after the fight ended. On
redirect, Harris confirmed he never saw either fighter with a weapon.
¶7 Detective William Fiedler testified that on March 14, 2014, he responded to the 4000 block
of West Van Buren and saw Wilson on the ground with gunshot wounds. Fiedler learned of a
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witness, Deloris Slater. That evening, he showed Slater a lineup that included defendant, and she
identified defendant as the shooter.
¶8 Slater testified that on March 14, 2014, she was at her home near Van Buren and Pulaski.
She saw the fight from her porch and recognized the two fighters as Wilson and “Skip.” The fight
lasted 15 to 20 minutes. At some point, a girl became involved, but onlookers stopped her. The
fight ended because “[s]omeone came around the corner shooting.” The shooter stopped in front
of Slater’s house and shot Wilson, who was running away. Slater confirmed that she made an
identification at a lineup.
¶9 On cross-examination, Slater confirmed that she often saw Wilson near her house, usually
with his son. She denied telling Fiedler that she saw another man and woman strike Wilson while
he fought with Skip. When the shooter came around the corner, Wilson started running. She was
not sure how many times Wilson was shot, but the shooter stopped firing after Wilson fell to the
ground.
¶ 10 Officer Nick Beckman testified that on March 14, 2014, he and his partners responded to
the shooting. Near Pulaski and Washington Street, Beckman observed a man exiting the front
passenger seat of a maroon or red vehicle. The vehicle matched the description from dispatch, so
Beckman curbed it. A woman was driving with a younger woman in the back seat. Beckman
removed the women and secured the vehicle. He observed a black handgun in a slide-lock position
on the floorboard of the front passenger seat. Other officers arrested the man who had exited from
the passenger seat, and Beckman identified defendant as that man in court.
¶ 11 The State entered five stipulations into evidence. First, Chicago Police Department (CPD)
forensic investigator Eric Szwed would testify that he processed the scene of Wilson’s shooting,
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photographed the body, and recovered 11 fired cartridge cases nearby and a firearm from the front
passenger side floor of a maroon Chevrolet Cobalt. Second, Illinois State Police (ISP) forensic
scientist Gregory Hickey would testify that he examined the recovered firearm and cartridge cases,
and would opine to a reasonable degree of scientific certainty that the cartridges were all fired from
the firearm.
¶ 12 Third, CPD forensic investigator Elizabeth Dawson would testify that she performed a
gunshot residue test on defendant on March 14, 2014. Fourth, ISP forensic scientist Ellen Chapman
would testify that she examined the collection kit and would opine to a reasonable degree of
scientific certainty that the results demonstrated that defendant discharged a firearm, contacted a
primer gunshot residue related item, or had both hands in the environment of a discharged firearm.
¶ 13 Finally, Cook County assistant medical examiner Dr. Marta Helenowski would testify that
she performed an autopsy on Wilson on March 15, 2014. She would opine to a reasonable degree
of scientific certainty that Wilson’s death was a homicide caused by a gunshot wound to the back
of the neck.
¶ 14 The defense called Deandre Benamon, defendant’s brother. Benamon testified that on
March 14, 2014, he drove to the area of Pulaski and Van Buren and waited for Antoinette Rice,
the mother of his child, to exit a train. He saw Rice walking with Wilson. At some point, Rice ran
to Benamon and said that Wilson threatened to “f*** her up” because she was “in his business
with her little sister and her baby mom.” 1 Benamon then drove to Wilson, lowered the window,
and confronted him. Wilson reiterated the threat.
1
Over the State’s objection, the court admitted this testimony for its effect on Benamon and not
the truth of the matter asserted.
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¶ 15 Benamon drove away with Rice, dropped her off, and picked up his uncle. He also called
his mother and told her “who [he] had an argument with and where they was [sic] from and if
anything was going to happen,” because he knew “them [sic] guys was capable of the things they
do when they get into it with people.” Benamon identified Wilson as a member of the New Breeds
gang and saw him every day selling drugs near the area where the confrontation occurred. During
the call, Benamon heard defendant in the background.
¶ 16 Benamon and his uncle returned to Pulaski and Van Buren and confronted Wilson and his
friends. A friend of Wilson’s told Benamon to “squash” the issue because they did not want to
attract police attention to the area. Benamon and his uncle exited the vehicle, and Wilson and
Benamon started fighting. During the fight, Wilson removed his shirt. Wilson fell on top of
Benamon, and Benamon’s sister, who was in the crowd, “jumped in.” Wilson’s friends helped to
break up the fight at this point. One of Wilson’s friends grabbed Benamon and walked with him
towards Pulaski. The man asked Benamon if he had calmed down, which he affirmed.
¶ 17 Benamon then saw defendant two to three feet from Wilson. Defendant asked Wilson if he
was “cool,” to which Wilson responded that he would “kill one of you b***.” Benamon felt
threatened. He started to walk away, heard gunshots, and immediately took cover.
¶ 18 On cross-examination, Benamon admitted he had a conviction for unlawful use of a
weapon by a felon. He and Wilson knew each other because Wilson dated one of Rice’s sisters,
but the two men had never fought before. Benamon and his uncle did not carry weapons during
the incident, and Benamon never saw Wilson with a weapon. To Benamon’s knowledge, no one
touched defendant or threatened him with a weapon prior to the shooting.
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¶ 19 Benamon gave a statement to the police on March 15, 2014. He did not remember if he
told the police “anything about [Wilson] not being cool with it.” He did not tell the police that
Wilson threatened to kill him because “they never asked me.”
¶ 20 On redirect, Benamon stated that he believed Wilson wanted to continue the fight based on
his comment about killing someone. Additionally, Wilson’s friends were not “acting in a calm and
peaceful manner” towards defendant in the moments prior to the shooting. Benamon lived on the
west side of Chicago and had seen members of the New Breeds carry firearms on the streets of his
neighborhood. On recross-examination, Benamon denied knowing that defendant was the shooter,
but acknowledged yelling that defendant was “bogus” after the shooting.
¶ 21 Defendant testified that he was at his mother’s house on March 14, 2014, when Benamon
called to say “he got into an argument with someone.” Following the call, defendant, his mother,
and his sister drove to Gladys and Pulaski. Defendant brought a firearm with him because “it’s a
violent neighborhood” and “[t]hings happen to innocent people all the time.” He had recently
witnessed someone being shot and killed during an incident where the shooter did not initially
brandish a firearm. Defendant did not know if Wilson or his friends had a firearm, but had seen
Wilson selling drugs before.
¶ 22 Defendant arrived and saw Benamon and Wilson fighting. He tried to break up the fight
after seeing his sister “get involved.” Defendant moved his sister out of the way and asked Wilson
if the situation was over. Benamon had walked away at that point, but Wilson said it was not over,
and that he would “kill” someone. Defendant believed that Wilson and his friends were still acting
aggressively.
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¶ 23 After Wilson said he would kill someone, he walked towards some clothing by a dumpster.
Defendant, believing Wilson was “going for a gun,” shot at Wilson, who “took off running.”
Defendant fired until Wilson stopped running because he was concerned that Wilson would “turn
around and *** shoot.” Wilson’s hands were not visible when he started to run. Defendant fired
the first shot because he believed Wilson “was going to put our life in danger,” and fired the last
shot so Wilson “wouldn’t turn back around.”
¶ 24 The defense played a video of defendant chained to a bench in a police station. Defendant
agreed that he told a detective that someone approached him and “was going to pull a gun on
[him],” instead of telling the truth, because he was uncomfortable and did not want to help the
police.
¶ 25 On cross-examination, defendant said he ensured his firearm was loaded before he left his
mother’s house. His first intention was to go to his girlfriend’s house, and he did not know that the
crowd was for the fight between Benamon and Wilson until he walked up to see what was
happening. Defendant never spoke with Wilson before the fight, and Wilson had never fought with
or threatened him in the past.
¶ 26 After the fight ended and Benamon walked away, defendant heard Wilson make threats
and say words defendant agreed “offended” and “frightened” him. Defendant never saw Wilson
with a weapon. When Wilson reached for his clothing, his back was turned and he was standing 5
to 10 feet from defendant. Defendant could not recall whether he fired 11 shots, but believed it
was four or five. After the shooting, defendant returned to his mother’s vehicle and entered the
passenger seat. He left the firearm in the vehicle, and agreed that he exited when police arrived
because he knew he did something wrong.
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¶ 27 On redirect, defendant stated that Wilson sold drugs and was a member of the New Breeds,
whom defendant believed “kill all the time.” He was concerned that if he waited to see if Wilson
had anything in his hands after reaching for his clothing, “he probably could have shot me and my
people that was [sic] out there.” On recross-examination, he denied intending to kill Wilson, but
admitted to firing straight at him.
¶ 28 Defendant recalled Fiedler, who testified that the shooting occurred in a “high crime
district.” Fiedler added that Slater reported seeing a man and woman strike Wilson while he was
fighting.
¶ 29 In rebuttal, the State introduced a record of defendant’s conviction for manufacture or
delivery of a controlled substance in case number 12 CR 0665901.
¶ 30 During closing arguments, defense counsel argued that defendant was only guilty of second
degree murder. The court inquired what circumstances made second degree murder appropriate.
Defense counsel cited Fiedler’s testimony that the shooting occurred in a dangerous neighborhood,
and argued this affected defendant’s state of mind. The court interjected that nonviolent people,
including two or three judges at the court, also lived on the west side of Chicago. The court further
questioned whether there was “any evidence that the [N]ew [B]reeds previously had been violent”
towards defendant. Counsel replied that Wilson was in a street gang that operated in the
neighborhood, and defendant’s knowledge of gang activity was relevant to assess what
circumstances he believed existed. In response, the court said, “First Mayor Daly [sic] was in a
street gang. What are you telling me?” Defense counsel concluded by arguing that the evidence
proved a mitigating factor because the “[t]otality of the circumstances” showed it was “reasonable”
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for defendant to believe Wilson posed a threat, although it was later revealed “that belief was
unreasonable” because Wilson was not found with a firearm.
¶ 31 In rebuttal, the State emphasized that defendant and his family were not in danger once the
fight ended, defendant fired multiple times while Wilson fled, and “mere words” are “not enough
to present a mitigating factor.”
¶ 32 The court found defendant guilty on all counts. In so holding, the court stated it was
“amazing” that defendant “wants the court to believe that he was acting reasonably in ***
interpreting that he was in danger,” in part because defendant did not observe Wilson with a
firearm and “no reasonable interpretation” of the facts suggested Wilson was armed. The court
believed the “preponderance of the evidence” did not establish that “anybody was at risk,” even if
defendant found it “necessary” and “reasonable just of nature” to fire at Wilson “almost a dozen
times” when Wilson reached for an article of clothing. Instead, the court found that defendant
committed “cold blooded murder” by shooting Wilson in the back of the neck and there was
nothing “reasonable in this court’s assessment.” According to the court, Wilson’s murder was
“senseless,” and it was “insulting” that defendant “would suggest that he was in fear of anything”
when there was “absolutely no evidence *** of any mitigating factor.”
¶ 33 The court denied defendant’s motion for a new trial. After a hearing, the court merged all
charges into count VI and sentenced defendant to 50 years’ imprisonment. The court then granted
defendant’s motion to reconsider sentence and reduced his sentence to 45 years’ imprisonment.
¶ 34 On appeal, defendant first argues that his conviction should be reduced to second degree
murder because he established the mitigating factor of unreasonable belief in self-defense.
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¶ 35 Relevant here, a defendant is guilty of first degree murder when he or she kills an individual
“without lawful justification,” and in doing so, (1) “either intends to kill or do great bodily harm
to that individual or another, or knows that such acts will cause death to that individual or another,”
or (2) “knows that such acts create a strong probability of death or great bodily harm to that
individual or another.” 720 ILCS 5/9-1(a)(1), (2) (West 2014). A defendant commits second
degree murder where, in relevant part, the State has proven first degree murder beyond a
reasonable doubt, but “at the time of the killing [the defendant] believes the circumstances to be
such that, if they existed, would justify or exonerate the killing *** but [the defendant’s] belief is
unreasonable.” 720 ILCS 5/9-2(a)(2) (West 2014).
¶ 36 One such justifying circumstance is self-defense. People v. Jeffries, 164 Ill. 2d 104, 113
(1995). In order to prove self-defense, a defendant must show:
“(1) force is threatened against a person, (2) the person is not the aggressor, (3) the danger
of harm was imminent, (4) the threatened force was unlawful, (5) the person actually and
subjectively believed a danger existed that required the use of the force applied, and (6) the
person’s beliefs were objectively reasonable.” People v. Washington, 2012 IL 110283, ¶
35.
Second degree murder is referred to as “imperfect self-defense” because the offender’s belief is
not objectively reasonable. People v. Castellano, 2015 IL App (1st) 133874, ¶ 148. Once the State
has proven the defendant guilty of first degree murder, the burden shifts to the defendant to
establish the remaining five elements of self-defense by a preponderance of the evidence. Id. at
¶ 154 (citing People v. Thompson, 354 Ill. App. 3d 579, 586 (2004)). If the defendant makes this
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showing, the burden shifts to the State to disprove any of those elements beyond a reasonable
doubt. Thompson, 354 Ill. App. at 586.
¶ 37 Whether the defendant has established imperfect self-defense is a question of fact.
Castellano, 2015 IL App (1st) 133874, ¶ 143. The standard of review on appeal is whether,
“viewing the evidence in light most favorable to the prosecution, any rational trier of fact could
have found that the mitigating factors were not present.” People v. Blackwell, 171 Ill. 2d 338, 358
(1996). The factfinder is “not obligated to accept a defendant’s claim of self-defense; rather, in
weighing the evidence, the trier of fact must consider the probability or improbability of the
testimony, the circumstances surrounding the killing and the testimony of other witnesses.” People
v. Rodriguez, 336 Ill. App. 3d 1, 15 (2002). In a bench trial, the factfinder makes all credibility
determinations. People v. Bradford, 2016 IL 118674, ¶ 12. Because “it is the responsibility of the
trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from the facts,” the reviewing court “will not substitute its judgment for that of the trier
of fact on questions involving the weight of the evidence or the credibility of the witnesses.”
People v. Gray, 2017 IL 120958, ¶ 35.
¶ 38 Defendant contends that he established imperfect self-defense because the evidence shows
Wilson threatened to use unlawful force against defendant and his family such that defendant
subjectively believed deadly force was necessary, though that belief was unreasonable. The trial
court, however, rejected defendant’s evidence on two elements of imperfect self-defense, namely
the imminence of the threat and whether defendant actually and subjectively believed a danger
existed that required the use of deadly force.
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¶ 39 The evidence showed that defendant was the only person who displayed or discharged a
firearm during the incident. Harris, Slater, and Benamon all testified that the fight between
Benamon and Wilson did not involve weapons. Both Benamon and defendant testified that they
overheard Wilson threaten to “kill” someone, but no one saw Wilson with a weapon at any point.
The witnesses agreed that the fight had concluded and Benamon was walking away when
defendant opened fire at Wilson. Wilson never touched defendant or threatened him with a
weapon. After the first shot, Wilson began to run away, but defendant pursued him and continued
to fire until Wilson fell. Defendant testified that he continued to fire because he was afraid Wilson
would turn around and shoot him.
¶ 40 Based on this record, we hold that a rational factfinder could have found defendant failed
to prove imperfect self-defense by a preponderance of the evidence. First, the fact that defendant
never saw Wilson with a weapon negates the imminence of the purported threat. In People v.
Babbington, 286 Ill. App. 3d 724 (1997), this court rejected the defendant’s argument that he shot
the victim due to an imminent threat of the victim pistol whipping him because the evidence
showed the victim’s firearm was in his pocket, not his hand. Babbington, 286 Ill. App. 3d at 731.
Here, there was no indication that Wilson had a weapon at all, and based on this fact, a rational
court could find that defendant did not face an imminent threat. See People v. Robinson, 375 Ill.
App. 3d 320, 336-37 (2007) (the jury was “practically compelled” to find threat was not imminent
in part because defendant never saw a firearm and the victim never showed a firearm). Defendant
points to his and Benamon’s testimony that Wilson made verbal threats, but verbal threats alone
are insufficient to justify the use of deadly force. See People v. Chatman, 102 Ill. App. 3d 692,
699 (1981) (victim grabbing defendant’s collar and threatening to harm him before walking away
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insufficient to justify deadly force); see also People v. Ranola, 153 Ill. App. 3d 92, 99 (1987)
(“[t]hreats or words do not justify the use of force”).
¶ 41 A rational factfinder could also conclude that defendant did not have a subjective belief
that deadly force was necessary to protect himself or his family. Defendant testified that he
believed Wilson was retrieving a firearm, but in self-defense matters, the factfinder makes its own
credibility determinations and is not required to accept the defendant’s representations. See
Rodriguez, 336 Ill. App. 3d at 15. Here, it was within the court’s discretion to find that defendant
did not have a subjective belief that a danger existed that required deadly force based on the
evidence that the fight had ended and Wilson never had a weapon. The court could also credit
defendant’s own testimony that he continued to fire as Wilson ran away, a fact corroborated by
Slater, as evidence negating that defendant subjectively believed he needed to use deadly force to
defend himself or his family. See People v. Cunningham, 212 Ill. 2d 274, 283 (2004) (factfinder
has discretion to accept some parts of a witness’s testimony while rejecting others).
¶ 42 The court was also free to reject the testimony that defendant’s subjective belief was
influenced by Wilson’s alleged membership in the New Breeds gang, the New Breeds’ alleged
reputation, and the alleged reputation of the neighborhood. Blackwell is instructive on this point.
There, the defendant fired at a group of men identified as members of the Latin Kings gang
following a fight between the men and an acquaintance of the defendant. Blackwell, 171 Ill. 2d at
344-46. The fight had ended, and the acquaintance was walking away when the defendant opened
fire. Id. at 345. The alleged gang members did not draw weapons. Id. The defendant testified that
he carried a firearm that night because he knew there was gang activity in the area, and he
discharged that firearm because he was concerned the victims would have weapons with them. Id.- 13 -
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at 345-46. The court rejected the defendant’s imperfect self-defense argument, citing the facts that
the “fight between [the defendant’s acquaintance] and the victims was a fist fight and did not
involve weapons,” defendant fired “when the victims were facing away,” and “[n]o threats or
hostile gestures had been made towards defendant.” Id. at 359. Similarly, the court here could
rationally find that the specific circumstances established defendant did not have a subjective belief
that force was necessary to protect himself or another, regardless of the general circumstances of
Wilson’s alleged gang membership and the reputation of the gang and neighborhood.
¶ 43 Defendant posits that certain comments by the trial court show that it failed to adequately
consider the evidence of his unreasonable belief in self-defense. Defendant notes that the court
said it was “insulted” that defendant would argue “he was in fear of anything.” He further suggests
that the court reacted inappropriately to defense counsel’s argument regarding the reputation of
the neighborhood and Wilson’s alleged gang membership by interjecting that current judges live
on the west side of Chicago, and that Mayor Daley was “in a street gang.” Counter to defendant’s
argument, the colloquy reveals that the court appropriately considered defendant’s testimony that
his subjective belief was influenced by the reputation of the neighborhood and by Wilson’s alleged
gang membership, and rejected it as incredible. This was within the discretion of the trial court.
See Gray, 2017 IL 120958, ¶ 35.
¶ 44 Defendant next argues that the court applied an incorrect legal standard to determine
whether he established imperfect self-defense. Specifically, defendant argues the court believed
that for purposes of second degree murder, he had to prove his belief in the need for deadly force
was reasonable. In support, defendant points to the court’s observation that defendant claimed to
have found it “necessary” and “reasonable” to shoot Wilson multiple times despite never seeing a
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weapon, as well as the court’s comments that there was nothing “reasonable in this court’s
assessment.”
¶ 45 A trial court “is presumed to know the law and apply it properly. However, when the record
contains strong affirmative evidence to the contrary, that presumption is rebutted.” People v.
Howery, 178 Ill. 2d 1, 32 (1997).
¶ 46 We find that the record does not contain strong affirmative evidence that the trial court
applied an incorrect legal standard. The court’s comments during closing argument and its findings
as a whole demonstrate that the court appropriately analyzed the evidence under the framework of
self-defense and found defendant did not prove he had an unreasonable belief in self-defense by a
preponderance of the evidence. See Thompson, 354 Ill. App. 3d at 586. This was a proper
application of the law.
¶ 47 In sum, the court applied the correct legal standard and rationally decided that defendant
did not prove the mitigating factor of imperfect self-defense by a preponderance of the evidence.
His conviction is thereby affirmed.
¶ 48 Affirmed.
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