Opinion
No. 1-12-3236
09-30-2014
PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RORY COOK, Petitioner-Appellant.
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).
Appeal from the Circuit Court of Cook County.
No. 99 CR 10066
Honorable Neera Lall Walsh, Judge Presiding
PRESIDING JUSTICE SIMON delivered the judgment of the court.
Justices Neville and Liu concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err by denying defendant's motion for leave to file a successive postconviction petition. While defendant did establish cause for failing to raise his arguments in his original postconviction petition, he did not establish any resulting prejudice.
¶ 2 Defendant Rory Cook appeals from a judgment of the Circuit Court of Cook County denying his motion for leave to file a successive postconviction petition. For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 Following a jury trial, defendant Rory Cook was found guilty of first degree murder for killing Brian Keith Bell. The trial judge sentenced defendant to 30 years in prison. Defendant's conviction was affirmed on direct appeal. People v. Cook, 352 Ill.App.3d 108 (2004) (petition for leave to appeal denied at 212 Ill.2d 539 (2004)). Defendant filed a postconviction petition which was advanced to the second stage and subsequently dismissed. The dismissal of defendant's postconviction petition was affirmed on appeal. People v. Cook, No. 1-11-1551, 2013 IL App (1st) 111551-U (June 27, 2013) (petition for leave to appeal denied at No. 116416, 996 N.E.2d 18 (Table) (September 25, 2013)). Defendant then filed a motion in the trial court seeking leave to file a successive postconviction petition which was denied by written order. Defendant now appeals the denial of his motion for leave to file a successive postconviction petition.
¶ 5 Defendant killed Brian Keith Bell on April 3, 1999. Bell was killed during an altercation between the parties over a $10 debt supposedly owed by defendant. The evidence adduced at trial was that, on the date of the incident, defendant and Garrett Scruthens were at defendant's apartment drinking alcohol and smoking crack cocaine. Defendant's girlfriend, Dana Hunt, and one of his friends, Darryl Bunch, arrived at defendant's apartment later in the day. Bell was defendant's downstairs neighbor. While coming and going from the apartment to buy more alcohol and crack cocaine that day, defendant had some confrontations with Bell over the $10 debt. At some point, defendant armed himself with a gun and the parties had another altercation in front of the apartment building. During the altercation, Bell was shot. When the police arrived, they observed defendant straddling Bell and strangling him. Bell died on the
way to the hospital and defendant was taken into custody.
¶ 6 One piece of evidence introduced at trial was defendant's confession. Prior to trial, defendant moved to suppress his inculpatory statements. The trial judge denied that motion. In his motion seeking leave to file a successive postconviction petition, defendant contends that the police fabricated his confession. Defendant maintains that he never intended to kill Bell and that Bell's death was a result of a struggle for the gun. Defendant claims that without the fabricated confession, there would have been no evidence that he intended to kill Bell and that, if his confession was not admitted, the jury might have found him guilty of either involuntary manslaughter or second degree murder instead of first degree murder.
¶ 7 After defendant was arrested, he was read his Miranda rights and interrogated by Detective Bernatek and Detective Van Witzenberg. Defendant was then transported to meet with Officer Bartik for the purpose of administering a polygraph examination. Before the polygraph examination took place, defendant allegedly made incriminating statements so the need for the polygraph examination was, in the investigators' opinion, obviated. Defendant repeated the confession to Detective McVicker. Defendant was then transported to be interviewed again by Van Witzenburg and Arteaga who were later joined by Assistant Cook County State's Attorney Tom Key. Key testified that defendant affirmed that Miranda warnings had been administered, but that he reissued the warnings and defendant also signed a pre-printed form waiving the rights afforded by Miranda. Key further testified that defendant indicated that he wanted to make a written statement and wanted Key to transcribe it. Defendant admitted signing the statement and initialing each page.
¶ 8 In his motion for leave to file a successive postconviction petition, Defendant alleges that
he never made the incriminating statement attributed to him by Officer Bartik before the scheduled polygraph examination. Defendant claims that new evidence has come to his attention that supports his position that the purported confession to Bartik was, in fact, fabricated. Along with his motion, defendant submitted evidence which he contends demonstrates that Officer Bartik has fabricated confessions of other defendants in similar circumstances. Defendant attached to his motion a 2010 article from the Chicago Tribune discussing a civil judgment awarded to Donny McGee in which a jury found Bartik, among others, liable for malicious prosecution in a case where the officers were alleged to have fabricated a confession. The verdict form from the McGee case is attached to defendant's motion. McGee v. City of Chicago, No. 08 L 3503 (Cir. Ct. Cook Co.). That verdict was overturned by this Court and the judgment was reversed, McGee v. City of Chicago, 2012 IL App (1st) 111084, ¶ 36, and defendant has not provided any further information about the proceedings. Defendant also attached a complaint filed in federal court against Bartik, among others, in Lanza v. City of Chicago, No. 08CV5103, 2010 WL 5313483 (N.D. Ill. Dec. 20, 2010). The plaintiff in Lanza alleged that Bartik fabricated a confession that was claimed to have been made right before a polygraph examination was to be administered. The Lanza plaintiff also alleged that Bartik had fabricated the confessions of John Fulton and Lamar Blount right before those individuals were to take polygraph examinations. Defendant did not supply any evidence concerning the disposition of the Lanza case, but claims in his brief that it resulted in a settlement. Other than the allegations made in the Lanza complaint, Defendant did not supply any information concerning John Fulton or Lamar Blount.
¶ 9 Despite the fact that the statement defendant allegedly made to Bartik was not offered at
trial, defendant argues that the newly discovered evidence of Bartik's pattern of misconduct establishes cause and prejudice and, thus, that the trial court should entertain his successive postconviction petition.
¶ 10 ANALYSIS
¶ 11 Defendant's only contention on appeal is that he satisfied the "cause and prejudice" test in his motion seeking leave to file a successive postconviction petition and, therefore, that the trial court erred by denying his motion. Generally, the Post-Conviction Hearing Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f). Successive petitions are disfavored and to proceed, a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Wilson, 2014 IL App (1st) 113570, ¶ 33. To establish cause, a defendant must identify an objective factor that impeded his ability to raise a specific claim during his initial post-conviction proceedings. Id. To establish prejudice, a defendant must demonstrate that the claim that was not originally raised infected the trial to the extent that the resulting conviction or sentence violated due process. Id. In reviewing a motion for leave to file a successive petition, all well-pleaded facts must be taken as true. People v. Edwards, 2012 IL App (1st) 091651, ¶ 25. We review the denial of leave to file a successive postconviction petition de novo. Id.
¶ 12 The parties dispute what standard a defendant must meet to establish cause and prejudice for purposes of a successive postconviction petition. Defendant contends that we should apply the "gist" standard in which a petition must have merely some arguable basis in law or fact. People v. Hodges, 234 Ill.2d 1, 17 (2009). The State contends that we should apply the "more exacting" standard in which a petition must state a colorable claim of a due process violation. The
Illinois Supreme Court has made clear that we are to apply a more stringent standard to successive petitions, People v. Edwards, 2012 IL 111711, ¶ 25, and we have interpreted that to mean that a defendant must set forth a colorable claim for relief, People v. Nicholas, 2013 IL App (1st) 103202, ¶ 49.
¶ 13 The trial court found that defendant could not establish cause because defendant waived the right to raise the issue of a fabricated confession by not including it in his initial postconviction petition. Any issues that could have been, but were not, raised in the original proceeding or original postconviction petition are waived. People v. Sanders, 2014 IL App (1st) 111783, ¶ 19. Here, at each stage of the proceedings defendant maintained that the statement was not a true account of the events according to him and that police misconduct rendered his statement inadmissible. Defendant specifically testified at trial that he "was telling [the officers] how the victim got shot," but that the officers were "making up a story on [him]." In his direct appeal, we acknowledged that defendant contested the admission of his inculpatory statement on the basis that it was concocted. We find no waiver.
¶ 14 In support of his argument that he has established cause, defendant maintains that at the time he filed his original postconviction petition, evidence of Officer Bartik's pattern of misconduct was not available to him. Defendant's first postconviction petition was filed on May 4, 2005. There is no indication that defendant knew or should have known of the alleged pattern of misconduct prior to October 2005 when he was sent a letter concerning Bartik's alleged misconduct. The documents attached to defendant's motion for leave to file a successive petition also show that the evidence of Bartik's alleged pattern of misconduct was not reasonably available to defendant at the time of trial or when he filed his initial postconviction petition. The Chicago
Tribune article was published in 2010 and both the McGee and Lanza cases were filed in 2008. A defendant's lack of evidence that an officer has committed misconduct in circumstances similar to the those of the defendant can serve as objective cause for failing to fully raise the claim in prior proceedings. See People v. Almodovar, 2013 IL App (1st) 101476, ¶ 64-68. The documents attached to the motion constitute new evidence that is material and not merely cumulative and the evidence was not discoverable through due diligence prior to trial or when the original postconviction petition was filed. We find that defendant established cause for failing to raise the issue of the fabricated confession in his initial postconviction petition.
¶ 15 Having found that defendant established cause for failing to raise his argument in his original postconviction petition, we must determine whether defendant has established prejudice. Prejudice exists where the defendant can show that the claimed constitutional error so infected his trial that the resulting conviction violated due process. People v. Croom, 2012 IL App (4th) 100932, ¶ 25. Here, defendant cannot demonstrate that the fabrication of any inculpatory statement resulted in prejudice. Even if defendant is able to prove all of his allegations concerning Bartik, the admission of his inculpatory statement at trial still does not constitute a due process violation.
¶ 16 Defendant only claims that the confession attributed to him by Bartik was fabricated. But after that, defendant reiterated his confession to Detective McVicker. Defendant then spoke with Detectives Van Witzenburg and Arteaga and confessed to them as well. Defendant then gave a written inculpatory statement that was transcribed by Assistant State's Attorney Key. Defendant does not argue that any of those additional confessions were fabricated. In fact, defendant does not argue that the confession admitted at trial contained any fabrications or inaccuracies.
Defendant instead contends that Bartik's alleged fabrication "interfere[ed] with his ability to decide whether or not to incriminate himself[.]" Defendant has failed to make out any colorable claim that the statement admitted at trial was involuntary or that it constituted a violation of his due process rights.
¶ 17 The general test of voluntariness is whether the defendant made a statement freely and without compulsion or inducement of any sort or whether his or her will was overcome at the time of the confession. People v. Gilliam, 172 Ill.2d 484, 500 (1996). In determining whether a confession is voluntary, we examine the totality of the circumstances, including the defendant's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning, the legality and duration of the detention, the duration of the questioning, and any physical or mental abuse by police, including threats or promises; no single factor is dispositive. Id.
¶ 18 Both the trial court and this Court have already found that defendant's statement to Assistant State's Attorney Key was voluntary. None of the allegations concerning Bartik change that calculus or call that result into question. An examination of the record reveals that defendant was given his Miranda warnings at least six times, once when he was initially arrested and again before each interview where an incriminating statement was made. Defendant was the one who indicated that he wanted to make a written statement. Defendant told Assistant State's Attorney Key that he had been "treated fine" by the officers. As defendant and Key prepared the statement, defendant reviewed it and made corrections to it and eventually signed it and initialed each page. The written statement and the unrebutted testimony of Assistant State's Attorney Key provide strong evidence that the statement was made voluntarily. Defendant had the opportunity to testify
at trial that the statement he gave was the police's narrative and not his own, that the officers were "making up a story on him." The jury obviously rejected that contention. The evidence also shows that Defendant had extensive experience with the criminal justice system, having been held in custody overnight on 65 prior occasions.
¶ 19 Moreover, contrary to defendant's argument that his confession was the only evidence of intent, there was plenty of other evidence from which a jury could have concluded that defendant intended to kill Bell. For example, Dana Hunt, defendant's girlfriend, testified that defendant's friend, Daryl Bunch, made multiple statements throughout the day encouraging defendant to shoot Bell, including that defendant "should pop him" before giving defendant a gun. Hunt further testified that, directly after those statements were made by Bunch, defendant stated that if Bell started any trouble, he would put Bell "to sleep" and that he would "pop" Bell if Bell continued to harass him. Additionally, the evidence showed that defendant shot Bell three times, cutting against his argument that the shooting was a result of a struggle over the gun. When the police arrived, they found defendant still straddling Bell and strangling him. There was also evidence that defendant gave the weapon to a friend to hide, another factor cutting against inadvertence or self-defense. In short, as we observed on direct appeal, even without the confession, the record is replete with statements and other evidence that defendant intended to kill Bell.
¶ 20 In postconviction proceedings, the petitioner bears the burden of establishing a substantial deprivation of his constitutional rights. People v. Coleman, 206 Ill.2d 261, 277 (2002). Leave to file a successive postconviction petition should be granted when the petitioner's supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. Edwards, 2012 IL 111711, at ¶ 24-25,
31-33. Here, defendant has failed to meet his burden and the trial court did not err by denying defendant's motion for leave to file a successive petition.
¶ 21 CONCLUSION
¶ 22 Accordingly, we affirm the judgment of the Circuit Court of Cook County.
¶ 23 Affirmed.