People v. Cook

2016 IL App (4th) 150547-U

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

NO. 4-15-0547

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

March 2, 2016

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 Circuit Court of Sangamon County

No. 07CF1314

Honorable Leslie J. Graves, Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justices Appleton and Pope concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding the trial court properly denied defendant's amended motion for leave to file a successive postconviction petition as defendant failed to satisfy the cause-and-prejudice test or demonstrate the fundamental-miscarriage-of-justice exception was applicable to overcome the bar against successive postconviction petitions.

¶ 2 In March 2015, defendant, Shai Tan Cook, filed an amended motion for leave to file a successive postconviction petition. Following a May 2015 hearing, the trial court denied defendant's motion. Defendant appeals, arguing the trial court erred in denying him leave to file a successive postconviction petition as he both satisfied the cause-and-prejudice test and demonstrated the fundamental-miscarriage-of-justice exception was applicable to overcome the bar against successive postconviction petitions. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In November 2007, the State charged defendant with 11 offenses relating to his involvement in a fatal vehicle collision on October 28, 2007. Seven of the charges were for aggravated driving under the influence (DUI) premised on defendant's alleged violations of various subsections of the DUI statute: count I charged defendant with driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2006)); count II, driving with a blood alcohol concentration (BAC) of 0.08 or greater (625 ILCS 5/11-501(a)(1) (West 2006)); count III, driving under the combined influence of drugs other than alcohol (625 ILCS 5/11-501(a)(4) (West 2006)); count IV, driving under the combined influence of alcohol and other drugs (625 ILCS 5/11-501(a)(5) (West 2006)); and counts V through VII, driving with any amount of a drug in his system resulting from unlawful consumption (625 ILCS 5/11-501(a)(6) (West 2006)). According to the charges, counts I through V were aggravated on the grounds defendant, while committing a DUI offense, was involved in a motor vehicle accident resulting in the death of another person (625 ILCS 5/11-501(d)(1)(F) (West 2006)); count VI, defendant, while committing a DUI offense, drove a vehicle which he knew or should have known was not covered by liability insurance (625 ILCS 5/11-501(d)(1)(H) (West 2006)); and count VII, defendant, while committing a DUI, operated a vehicle without a driver's license (625 ILCS 5/11-501(d)(1)(G) (West 2006)). The remaining counts charged traffic offenses: count VIII, failure to yield right of way to an emergency vehicle (625 ILCS 5/11-907(a)(1) (West 2006)); count IX, failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 2006)); count X, operating an uninsured vehicle (625 ILCS 5/3-707(a) (West 2006)); and count XI, driving without a valid license (625 ILCS 5/6-101(a) (West 2006)). Count IX was later dismissed by motion of the State. People v. Cook, 2011 IL App (4th) 090875, ¶ 9, 957 N.E.2d 563.

¶ 5 In August 2009, the trial court held a jury trial. We have previously set out the events surrounding the fatal collision as follows:

"That night, defendant was among a large group of patrons at J.D.'s, a now-defunct bar outside Illiopolis. Before traveling to J.D.'s, defendant had already consumed several alcoholic beverages at a Halloween party. Once there, he continued drinking. All told, by his own accounts, defendant drank at least four or five beers and at least two shots of vodka that night.

The owner of J.D.'s ordered all the patrons to exit the bar when a fight broke out inside. The fight continued in the parking lot, where the other customers were slow to leave. Two police officers who were already at J.D.'s on an unrelated matter attempted to break up the fight. When their efforts stalled, the owner of J.D.'s 'maced everybody.' Illinois State Police trooper Brian McMillen, who was nearby on I-72, responded to a call for backup.

J.D.'s was located south of I-72 on Dye Road, an undivided, two-lane highway with a speed limit of 55 miles per hour. When defendant and his passenger left J.D.'s, they found themselves in a line of traffic traveling north on Dye toward the interstate. The relative position of five of the cars was described in testimony at defendant's trial. The first of these was driven by Aretha Currie, the second by Tamara Apholone, the third by Justin Taylor, the fourth by defendant, and the fifth by Tarise Bryson.

As these drivers headed north, Trooper McMillen drove south on Dye toward J.D.'s from the interstate. When Currie saw Trooper McMillen's car with its overhead lights activated, she drove onto the shoulder and stopped. Apholone did the same. Whether these drivers were able to stop before Trooper McMillen passed in the opposite direction is not revealed by the record.

Behind Currie and Apholone, Taylor steered his entire car into the southbound lane. He and Trooper McMillen unsuccessfully attempted to avoid colliding. Trooper McMillen's car was traveling 93 miles per hour and Taylor's 30 miles per hour. The passenger sides of their cars made contact, sending Trooper McMillen's car into the northbound lane at 83 miles per hour and disabling his car's electrical functions, including its headlights and overhead lights. As it skidded into the lane of oncoming traffic, Trooper McMillen's car spun clockwise a quarter turn, throwing its tail end onto the shoulder and leaving its front end in the roadway. Defendant's car then struck the driver-side passenger compartment of Trooper McMillen's car perpendicularly. Defendant had cut his speed from 45 to 38 miles per hour before impact; Trooper McMillen's car, spinning out of control, had slowed to 77 miles per hour. Behind defendant, Bryson had begun slowing when he first noticed Trooper McMillen's police lights—by his account, approximately 5 or 10 seconds before the accident; when he anticipatedthe second collision, he steered his car into the field abutting the shoulder to avoid further collision. Trooper McMillen was killed upon the impact of his car with defendant's. Defendant and his passenger sustained injuries requiring hospitalization. Taylor was uninjured.

Both Taylor and defendant were intoxicated at the time of the accident. Taylor had a [BAC] of 0.164 and some 'over-the-counter cold medicine' was detected in his system. Based on samples taken at the hospital, defendant's BAC was determined to have been between 0.109 and 0.119 at the time of the accident. Tests also revealed the presence of the controlled substances ketamine and methylenedioxymethamphetamine (MDMA) in defendant's blood and urine, respectively." Cook, 2011 IL App (4th) 090875, ¶¶ 3-8, 957 N.E.2d 563.

¶ 6 Following defendant's trial, a jury convicted him of counts I, II, IV, VI through VIII, X, and XI, as charged. Additionally, defendant was convicted of DUI under count V. In October 2009, the trial court sentenced defendant to (1) 14 years' imprisonment each on counts I, II, and IV; (2) 365 days in jail on count V; (3) 6 years' imprisonment each on counts VI and VII; and (4) statutory fines on counts VIII, X, and XI. All sentences were to be served concurrently. Cook, 2011 IL App (4th) 090875, ¶ 10, 957 N.E.2d 563.

¶ 7 Defendant appealed his convictions on counts I, II, and IV. Cook, 2011 IL App (4th) 090875, ¶ 11, 957 N.E.2d 563. We rejected defendant's argument the State failed to prove him guilty of aggravated DUI on all three counts but, upon finding his convictions violated theone act, one crime rule, we vacated his convictions on counts II and IV. Cook, 2011 IL App (4th) 090875, ¶¶ 14, 36, 957 N.E.2d 563.

¶ 8 In February 2012, defendant filed a pro se postconviction petition, alleging his constitutional rights were violated as indicated in his posttrial motion, which he attached to the petition. In May 2012, the trial court dismissed defendant's petition at the first stage of postconviction proceedings, and defendant appealed. In February 2013, defendant filed a motion to dismiss his appeal, which this court granted.

¶ 9 In November 2014, defendant, through counsel, filed a motion for leave to file a successive postconviction petition. Following a January 2015 hearing, the trial court denied defendant's motion but granted leave to amend. A written order was entered in March 2015.

¶ 10 In April 2015, defendant filed an amended motion for leave to file a successive postconviction petition. Defendant's amended motion addressed (1) four bases he intended to present as ineffective-assistance-of-trial-counsel claims in a successive postconviction petition, (2) the alleged cause for failing to present those claims in his initial postconviction petition, (3) the alleged prejudice he suffered by trial counsel's alleged failures, and (4) separate claims of actual innocence.

¶ 11 As to the bases of his ineffective-assistance claims, defendant alleged trial counsel provided ineffective assistance by (1) failing to interview and introduce an expert to testify Trooper McMillen was killed during the first collision with Taylor, (2) failing to make Trooper McMillen's unsafe operation of his squad car an issue at trial, (3) failing to interview and introduce an expert to testify he did not have MDMA or ketamine in his system at the time of the collision, and (4) a combination of various trial errors and omissions. Defendant alleged these claims were supported by affidavits he had attached to a proposed successive postconviction pe-tition. As to the cause of his failure to...