People v. Cook

2022 IL App (1st) 210436-U

• Court: Appellate Court of Illinois
• Decided: May 3, 2022
• Docket: 1-21-0436
• Status: Unpublished

Opinion

2022 IL App (1st) 210436-U No. 1-21-0436 Order filed May 3, 2022 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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. 99 CR 10066 ) RORY COOK, ) Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Lavin concurred in the judgment.

ORDER

¶1 Held: The circuit court’s denial of defendant’s pro se motion for leave to file his sixth successive postconviction petition is affirmed where defendant failed to establish cause for not raising his claim in his prior filings.

¶2 Defendant Rory Cook appeals from an order of the circuit court of Cook County denying

his pro se motion for leave to file his sixth successive petition for relief under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). The circuit court concluded that

defendant’s claims were waived and that he failed to satisfy the cause and prejudice test required No. 1-21-0436

for successive postconviction petitions. On appeal, defendant contends the court erred when it

denied him leave to file his petition because he established cause and prejudice for raising a claim

that his trial counsel rendered ineffective assistance. Defendant alleges counsel failed to investigate

and present testimony from Garrett Scrutchens, who provided a written statement to police that

would have corroborated defendant’s claim that he shot the victim in self-defense. Defendant

further contends he has cause for raising this allegation in his sixth successive petition because he

learned about Scrutchens’s statement years after the shooting and did not obtain a copy of that

statement until March 2020. We affirm.

¶3 Following a 2000 jury trial, defendant was convicted of first degree murder for fatally

shooting Brian Keith Bell. The facts of this case were initially presented in this court’s opinion

affirming defendant’s conviction on direct appeal. People v. Cook, 352 Ill. App. 3d 108 (2004).

We discuss the evidence presented as necessary for consideration of the issue in this appeal.

¶4 At trial, defendant’s girlfriend, Dana Hunt, testified for the State that in April 1999, she

and defendant lived together in a second-floor apartment in a building on the corner of 113th Street

and King Drive. The building owner had disappeared and no tenants were paying rent. Four months

prior to the shooting in this case, defendant allowed Bell to move into the apartment below theirs.

Defendant charged Bell monthly rent, but Hunt did not know how much.

¶5 On April 3, 1999, the day of the shooting, Hunt returned home between 3:30 and 4 p.m.

Defendant and Scrutchens were there drinking, and she joined them. About 6 p.m., defendant left

to buy more alcohol. Defendant had to pass Bell’s first-floor apartment to leave the building. While

defendant was gone, Darryl Bunch arrived at their apartment. Defendant returned home with

whiskey and beer. About 7 p.m., Bunch gave defendant $20 to buy crack cocaine from another

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apartment on the first floor. Defendant left their apartment and had to walk past Bell’s apartment

to reach the other apartment. About 10 minutes later, Hunt heard defendant and Bell arguing in

front of their building. Hunt looked out the window and observed defendant and Bell fighting

across the street. Hunt went downstairs and broke up the fight. Defendant and Hunt returned to

their apartment and Bell walked down the street. Defendant was bleeding from a scrape on the

right side of his forehead. Defendant, Hunt, Bunch, and Scrutchens continued drinking and smoked

crack. Bunch stated that defendant should have “stomped” Bell.

¶6 One or two hours later, defendant and Bunch left the apartment to buy more alcohol. While

they were gone, Hunt went downstairs to Bell’s apartment and gave Bell $10. Hunt explained that

Bell had previously come upstairs to their apartment and threatened defendant because defendant

owed Bell $10. When Hunt paid Bell, she asked him if the fighting could be over. Bell replied that

everything was “cool.” Hunt returned upstairs. Scrutchens had left the apartment but returned.

¶7 About 8:30 or 9 p.m., defendant and Bunch returned to the apartment and the four of them

resumed drinking. Bunch told defendant that he should “pop” Bell. Bunch pulled out a gun,

removed the bullets, reloaded the weapon, and set it on the table they were seated around.

Defendant replied that “he would if [Bell] kept f***ing with him.” Defendant also stated that if

Bell started any trouble, he would put Bell “to sleep.” Defendant took the gun from the table and

placed it inside his back pocket. Scrutchens left the apartment.

¶8 Hunt testified that defendant went to lock their apartment door and she heard him and Bell

arguing at the door. Hunt got between the two men and tried to separate them. The three of them

“wrestled” down the stairway to the first floor. Hunt got out from between the two men and headed

back upstairs. Hunt testified that she turned around and observed Bell “dragging” defendant out of

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the building by his collar. Hunt looked out a square window in the door and observed that

defendant had removed the gun from his pocket. Bell grabbed the gun and the two men wrestled

over it. Hunt turned around and was heading upstairs when she heard gunshots. Hunt

acknowledged that two days after the shooting, she gave a handwritten statement to an assistant

state’s attorney (ASA) in which she never stated that she observed what defendant and Bell did

outside the building. Hunt further acknowledged that the day after giving her statement, she

testified before the grand jury and never stated that she looked out the window and observed what

happened outside. Hunt testified to the grand jury that when defendant placed the gun in his back

pocket and left their apartment, she thought he was going to confront Bell.

¶9 On cross-examination Hunt testified that the weekend before the shooting, Bell came to

their apartment several times looking for defendant, who was not home. Bell told Hunt that if

defendant did not have his money, Bell “was going to kick his ass.” Hunt testified that during the

initial fight that occurred across the street, Bell was holding a hammer in his hand. Hunt did not

know if Bell had the hammer with him during the second fight outside their apartment door.

¶ 10 On redirect examination, Hunt acknowledged that one month before trial, defendant called

her and said it was important that she testify that Bell was on the second floor immediately before

he was shot. Defendant did not ask her to lie. Hunt “possibly” told the ASA that Bell was standing

in front of his own apartment on the first floor. Hunt also acknowledged that she told the ASA that

when defendant put the gun in his pocket and headed towards their door, she knew he was going

to confront Bell. As defendant went downstairs, Hunt got in front of him and tried to stop him.

¶ 11 Chicago police officers David Showers and Cordy Fouch both testified that when they

arrived at the scene, Bell was lying on his back on the ground. Defendant was sitting on top of Bell

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choking him. Showers pulled defendant off Bell. Bell pointed at defendant and stated several times

that defendant shot him. Bell told Fouch that defendant gave the gun “to his boy who ran into the

building.” Fouch observed that Bell had a gunshot wound to his abdomen.

¶ 12 Chicago police detective Paul Bernatek testified that during an interrogation, defendant

initially told police that Bell took the gun from him and shot himself five times. Shortly thereafter,

defendant admitted that he shot Bell and that Bell did not have anything in his hands.

¶ 13 Chicago police detective Robert McVicker testified that defendant told him that he and

Bunch went to Bunch’s apartment together to get Bunch’s gun. After they returned to defendant’s

apartment, Bunch loaded the weapon and handed it to defendant. Bunch told defendant to shoot

Bell if they fought again. Defendant admitted that he fired the gun three times and shot Bell.

¶ 14 Chicago police detective Sylvia Van Witzenburg testified that on the evening of April 4,

1999, she and her partner, Detective Robert Arteaga, interviewed Hunt, Bunch, and Scrutchens.

After speaking with Bunch, police searched defendant’s apartment and recovered a firearm hidden

inside a couch. Later that night, Van Witzenburg and Arteaga interviewed defendant, who told

them he argued and fought with Bell the previous night. Hunt had broken up their initial fight.

Defendant then returned to his apartment with Hunt where they were drinking and talking with

some friends. Defendant told his friends that if Bell ever touched him again, he would have to “put

him to sleep.” Bunch handed defendant a loaded gun, which he put in his back pocket. Defendant

heard Bell downstairs and went down to confront him. The men went outside. Defendant admitted

that he knew he was going to shoot Bell if Bell touched him. The men grabbed each other and

began fighting. Defendant stated that he reached into his pocket with his right hand, pulled out the

gun, and shot Bell once. The men exchanged a few words, and defendant shot Bell twice more.

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Bell fell to the ground and defendant got on top of him. Bunch approached the men and removed

the gun from defendant’s hand. Bell was still moving so defendant grabbed Bell’s neck. Defendant

was holding Bell down by the neck when the police arrived. Van Witzenburg specifically asked

defendant if Bell ever had a gun or weapon in his hand during the fight. Defendant replied that

Bell never had any type of weapon in his hand.

¶ 15 Van Witzenburg testified that, following the interview with defendant, ASAs Thomas Key

and Scott Anderson arrived at the police station and interviewed defendant, Bunch, Hunt, and

Scrutchens.

¶ 16 ASA Key testified that he and Anderson interviewed Hunt and Scrutchens. Key then took

defendant’s written statement. Therein, defendant stated that during his initial fight with Bell that

night, neither defendant nor Bell had a weapon. Minutes after that fight, defendant and Bunch left

defendant’s apartment to go to the liquor store and to get Bunch’s gun. During the ride, Bunch told

defendant that he should have “whooped [Bell’s] ass while he had him on the ground.” After Bunch

retrieved his gun, he told defendant to “pop” Bell if Bell started any more trouble. When defendant

and Bunch returned to defendant’s apartment, defendant told everyone that Bell had better not start

any trouble with him. Hunt told defendant that she gave Bell his $10. Bunch again told defendant

that he should “pop his ass,” meaning he should shoot Bell. Defendant told everyone that he was

going to ask Bell if “this s*** was over with,” and if Bell said no, defendant was going to shoot

him. Defendant also stated that he was going to put Bell “to sleep” if Bell put his hands on him.

Everyone heard Bell’s apartment door open. Knowing Bell was home, Bunch loaded the gun and

handed it to defendant. Defendant placed the gun in his back pocket and went downstairs to

confront Bell. Hunt pleaded with defendant not to go, but defendant “wanted to settle this once

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and for all.” The rest of defendant’s statement was consistent with Van Witzenburg’s testimony

regarding defendant’s confession. Key specifically asked defendant if Bell had any sort of weapon.

Defendant replied, “no.” Key acknowledged he did not ask defendant if Bell had a hammer. Key

stated, “[n]o one ever mentioned hammer, he didn’t mention it and I didn’t mention it.”

¶ 17 Defendant testified that about 3:30 or 4 p.m. on April 3, he and Scrutchens began drinking

and smoking crack cocaine. Scrutchens told defendant that Bell had come to the apartment earlier

looking for him. About 5 p.m., defendant left to buy liquor with $3 Scrutchens had given him. As

defendant left the building, Bell asked him for $10. Defendant said he did not have the money.

Bell said “okay,” and entered his apartment. When defendant returned, Bell stopped him in the

hallway, pointed out that he had bought liquor, and again asked him for the money. Defendant told

Bell he bought the liquor with money from Scrutchens. Defendant then returned to his apartment.

¶ 18 Shortly thereafter, Hunt arrived at the apartment. About 6 p.m., Bunch arrived. Bunch

gave defendant $20 to buy more cocaine. Defendant left the apartment to do so and saw Bell in

the hallway. Bell tried to take the money from defendant. Defendant went out the front door and

Bell chased him across the street. Bell struck defendant in the back with his ring of keys. The men

began wrestling. Bell pushed defendant’s head down on the concrete, scraping defendant’s face.

Hunt broke up the fight, and she and defendant returned upstairs to their apartment.

¶ 19 About 10 p.m., defendant and Bunch left the apartment to buy more alcohol. They stopped

at Bunch’s house so Bunch could call his girlfriend. During the ride, Bunch told defendant he

“should have whooped [Bell’s] ass.” They returned to defendant’s apartment and continued

drinking. Defendant left the room at one point, and when he returned, there was a gun on the table.

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¶ 20 Defendant heard a “big boom” noise that sounded like someone kicked in the front door of

the building. Scrutchens jumped up and ran out of the apartment, leaving defendant’s door open.

Bunch handed defendant the gun, which defendant placed in his back pocket. Defendant did not

know if the gun was loaded and was “scared of guns.” Defendant went to close his apartment door

and observed Bell coming up the stairs. Defendant and Bell began arguing. Hunt stood between

them but then moved out of the way. Bell swung a hammer at defendant, striking him in the head

above his left eyebrow. Defendant ran downstairs to get away from Bell.

¶ 21 As defendant tried to open the front door of the building, Bell grabbed the hood of

defendant’s sweatshirt and threw him against the door. Defendant pulled the gun out of his pocket

and held it up to scare Bell. Bell grabbed the gun with both hands. The men fell to the ground and

were struggling over the gun when the gun fired. Defendant did not know if Bell had been shot.

Bunch approached them and removed the gun from defendant’s hand. Defendant also testified that

he continued to hold Bell down because he did not know who had the gun.

¶ 22 At the police station, Key told defendant that he was going to make a report of defendant’s

statement. Defendant asked Key for a lawyer, and Key replied that none were there. Key brought

two detectives into the room and told defendant to begin his statement. Defendant admitted that

he signed the inculpatory statement after Key read it to him but claimed Key and the police

concocted it. Defendant did not protest at the time because he was exhausted.

¶ 23 On cross-examination, defendant testified that he did not know Bunch retrieved a gun when

they went to Bunch’s apartment. Defendant claimed that when he and Bell wrestled the first time

and Bell struck him with the keys, he felt he was in a life-threatening situation. However, moments

later defendant testified that he did not call the police about the altercation because “[i]t was no

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big deal.” Defendant put the gun in his pocket so neither he nor anyone else would get hurt.

Defendant claimed he told Van Witzenburg and Key that Bell struck him with a hammer, but that

fact was left out of his statement because Van Witzenburg said he was “making up a story.”

¶ 24 On redirect examination, defendant testified that Bell did not hit him with the hammer

during their initial fight. Bell struck him with the hammer when Bell came upstairs during the

second fight.

¶ 25 The jury was instructed on the offenses of first degree murder, second degree murder, and

involuntary manslaughter. The second degree murder instruction was based on defendant having

an unreasonable belief that he was justified in using deadly force against Bell. The jury rejected

defendant’s claim of self-defense and found him guilty of first degree murder. The trial court

sentenced defendant to 30 years’ imprisonment.

¶ 26 On direct appeal, defendant argued that: (1) the police obtained his inculpatory statements

in violation of his Miranda rights; (2) the trial court erred when it allowed three witnesses to testify

about statements Bunch made encouraging defendant to shoot Bell; (3) the trial court erred when

it suppressed evidence of Bell’s prior violent behavior where the jury was instructed on self-

defense; (4) the trial court erred when it failed to instruct the jury on the “serious provocation”

theory of second degree murder; and (5) the evidence supported a conviction for involuntary

manslaughter rather than first degree murder. This court rejected those arguments and affirmed

defendant’s conviction. People v. Cook, 352 Ill. App. 3d 108 (2004).

¶ 27 Since 2005, defendant has filed numerous unsuccessful pro se collateral pleadings

challenging his conviction. This court has affirmed the dismissal of defendant’s 2005 initial

postconviction petition filed under the Act (People v. Cook, 2013 IL App (1st) 111551-U), the

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dismissal of his 2011 petition for relief from judgment filed under section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 2010)) (People v. Cook, No. 1-11-3196 (2013)

(unpublished summary order under Supreme Court Rule 23(c))), the denial of his 2012 motion for

leave to file a successive postconviction petition under the Act (People v. Cook, 2015 IL App (1st)

123236-U), the denial of his 2013 “Motion for Prosecutorial Misconduct” (People v. Cook, No. 1-

14-0015 (2014) (unpublished summary order under Rule 23(c))), the denial of his 2014 petition

for a writ of mandamus (People v. Cook, No. 1-14-3531 (2016) (unpublished summary order under

Rule 23(c))), the denial of his 2015 petition for forensic testing (People v. Cook, No. 1-15-2870

(2017) (unpublished summary order under Rule 23(c))), the dismissal of his 2015 petition for relief

from judgment filed under section 2-1401 of the Code (People v. Cook, No. 1-15-3579 (2017)

(unpublished summary order under Rule 23(c))), the denial of his June 2015 motion for leave to

file a second successive postconviction petition under the Act (People v. Cook, No. 1-18-1105

(2020) (unpublished summary order under Rule 23(c))), the denial of his 2017 motion for leave to

file a third successive postconviction petition under the Act (People v. Cook, No. 1-17-3032 (2019)

(unpublished summary order under Rule 23(c))), and the denials of his August 2019 motion for

leave to file a fourth successive postconviction petition under the Act and his December 2015

“Motion for New Trial for Newly Discovered Evidence” which was recharacterized in December

2019 as his fifth successive postconviction petition (People v. Cook, No. 1-20-0661 (2021)

(unpublished summary order under Rule 23(c))).

¶ 28 On July 9, 2020, defendant filed the instant pro se motion for leave to file his sixth

successive postconviction petition, which is his seventh petition filed under the Act. In his motion,

defendant alleged his trial counsel rendered ineffective assistance because counsel failed to call

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Scrutchens as a witness. Defendant stated that Scrutchens gave a signed written statement to ASA

Anderson and Detective Arteaga on April 5, 1999, stating that Bell made threats against defendant

to Scrutchens prior to “the confrontation.” Defendant asserted that Scrutchens saw the hammer

Bell “was swinging” which he used to hit defendant in the head. Scrutchens also saw Bunch

remove a gun at defendant’s table and described the gun. Defendant stated that Scrutchens was

listed as a witness for the State and subpoenaed but failed to appear at trial. Defendant claimed

that, because Scrutchens was not called as a defense witness, his statement was not presented to

the jury and defendant was denied a mitigating factor at sentencing.

¶ 29 Defendant asserted he had cause for failing to raise the claim in a prior pleading because

he received Scrutchens’s written statement on March 20, 2020, when he received his discovery

from the State which he had been waiting to receive for 21 years. He also claimed he suffered

prejudice because if the jury would have heard the evidence in Scrutchens’s statement, the outcome

of the trial would have been different. Defendant asked the court to relax the doctrines of waiver

and res judicata because his trial and appellate counsel were ineffective for not raising the claim

earlier. Defendant requested that his conviction be vacated and he be given a new trial, or

alternatively, that his conviction be reduced to second degree murder.

¶ 30 Defendant attached an accompanying successive postconviction petition to his motion.

Therein, defendant restated the allegations in his motion. He further claimed trial counsel was

ineffective for failing to cross-examine Arteaga and Anderson about Scrutchens’s statement.

¶ 31 Defendant also attached several documents to his motion. The first document is

Scrutchens’s written statement given to Anderson and Arteaga. Scrutchens stated that when he and

defendant were drinking alone in defendant’s apartment on the day of the shooting, Scrutchens

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told defendant that he spoke with Bell the previous day. Bell had told Scrutchens that defendant

owed him $10 and that defendant had better pay him or Bell would “kick his ass.” Scrutchens’s

stated that when he told defendant about this conversation with Bell, defendant did not seem too

concerned about it. Scrutchens discussed hearing the initial fight outside between defendant and

Bell. Hunt and Bunch went outside. Scrutchens remained inside the apartment and did not go

outside because he did not want to get involved in defendant and Bell’s argument.

¶ 32 Scrutchens decided to leave. As he walked downstairs, defendant, Hunt, and Bunch were

returning upstairs. Defendant went inside his apartment. Bell exited his first-floor apartment with

a hammer in his hand. Bunch and Hunt were still on the stairs. Bunch and Bell began yelling at

each other. Bell then left the building and walked down the street. Hunt and Bunch returned to the

apartment upstairs. Scrutchens left the building and drove away in his vehicle.

¶ 33 Scrutchens returned to the apartment to check on Hunt because she had been drinking. He

parked in front of the building. Scrutchens observed Bell walk down the street and return to his

apartment. At that moment, Bunch, who had been sitting in his vehicle, pulled away but then

returned. Defendant and Hunt came downstairs. Defendant left with Bunch to go to the liquor

store. Scrutchens and Hunt went upstairs to the apartment. Defendant and Bunch returned a half-

hour later and they all continued drinking. Bunch told defendant, “[y]ou should have stomped

[Bell] when you had him on the ground.” Scrutchens told Bunch not to encourage defendant to

“mix it up” with Bell. Hunt told defendant and Bunch to “let it go” because she had already paid

Bell the $10 defendant owed him.

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¶ 34 Bunch pulled out a metallic snub-nose .38-caliber revolver. Scrutchens did not want to be

involved in what was happening. He left the apartment without saying anything to anyone. He got

into his vehicle and drove home. The next afternoon he learned Bell had been killed.

¶ 35 The second document defendant attached to his motion was the transcript of Scrutchens’s

grand jury testimony given April 6, 1999. Scrutchens’s grand jury testimony was substantially the

same as his written statement. In his grand jury testimony, Scrutchens acknowledged that he gave

a written statement to Anderson and Arteaga the previous day and identified that statement. He

stated that the facts in his written statement were the same as those he told to the grand jury.

¶ 36 Third, defendant attached portions of a police supplementary report from the investigation

of the shooting. The report includes details about the detectives’ interviews with defendant, Bunch,

Hunt and Scrutchens. The details of Scrutchens’s interview are substantially the same as the facts

in his written statement. The report further indicated, “Garrett stated he had not been present during

the shooting and could not add any further information at this time.”

¶ 37 Fourth, defendant attached his own affidavit notarized on July 26, 2019. Defendant

averred, “Garrett Scruthens talk with Thomas Key ASA. Also gave a statement that he witness

Keith Bell with a hammer in his hand. Garrett Scruthens statement was never heard in front of my

jury. See (G-85) on record Thomas Key testimony that is attached. Also see (G-109) Line 9 and

10.” Defendant attached those pages of Key’s trial testimony wherein Key acknowledged he

interviewed Scrutchens and Hunt. Key stated he did not take any notes during those interviews.

¶ 38 Fifth, defendant attached two pages from defense counsel’s opening statement at trial.

Therein, counsel stated that Bell had a hammer earlier in the day that was observed by Hunt,

Scrutchens, and Bunch. Counsel stated, “[t]hat’s the hammer that he used to hit Rory Cook when

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this fight took place.” Counsel stated that Bell had threatened to “whip [defendant’s] ass” the night

before he was killed. Counsel stated that on the day Bell was killed, Bell had threatened Bunch

with the hammer, and during the second fight, Bell hit defendant in the head with the hammer.

¶ 39 Finally, defendant attached the State’s Attorney’s Investigator Request Form indicating

Scrutchens was personally served with a subpoena to appear as a witness at trial. The subpoena

directed Scrutchens to appear in court to testify on August 21, 2000.

¶ 40 Defendant did not attach an affidavit from Scrutchens indicating that Scrutchens was

willing to testify for defendant at trial.

¶ 41 On March 18, 2021, the circuit court found that defendant’s allegations were waived, and

alternatively, that they were without merit. The court pointed out that Scrutchens’s statement did

not claim defendant was innocent. The court found that, because Scrutchens was not present during

the shooting, it was not unreasonable for counsel to not call him as a witness. The court further

found that defendant was not prejudiced by counsel’s failure to call Scrutchens because Scrutchens

could not explain the events that led to the shooting or identify the shooter. In addition, the court

found defendant was not prejudiced where he confessed to police and testified at trial that he shot

Bell in self-defense. The circuit court concluded that defendant failed to satisfy the cause and

prejudice test required for successive postconviction petitions, and thus, denied his motion for

leave to file the petition.

¶ 42 On appeal, defendant contends the circuit court erred when it denied him leave to file his

sixth successive postconviction petition because he established cause and prejudice for raising his

claim that his trial counsel rendered ineffective assistance. Defendant alleges counsel failed to

investigate and present testimony from Scrutchens, whose written statement to police would have

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corroborated defendant’s claim that he shot Bell in self-defense. Defendant claims that

Scrutchens’s testimony that he observed Bell carrying a hammer shortly before the shooting would

have corroborated his testimony that Bell struck him in the head with a hammer, thus supporting

his theory of self-defense. Defendant further contends he has cause for raising the allegation in his

successive petition because he learned about Scrutchens’s statement years after the shooting and

did not obtain a copy of that statement until March 2020. Defendant claims he was prejudiced by

the omission of Scrutchens’s testimony because if the jury had heard another witness support

defendant’s account of what occurred, there is a good chance the verdict would have been different.

¶ 43 The State responds that the circuit court correctly determined that defendant failed to

satisfy the cause and prejudice test. The State asserts that defendant has no cause for raising the

issue in a successive petition because he was aware of counsel’s failure to call Scrutchens as a

witness prior to filing his first postconviction petition in 2005, and thus, could have raised the issue

on direct appeal or in his first petition. The State points out that defendant was with Scrutchens

before, during, and after the first altercation with Bell and prior to the shooting. In addition, the

State notes that documents in the record from defendant’s previous filings show he was aware of

Scrutchens’s statement as early as 2001 when he referred to it in a pro se motion to reduce his

sentence. Defendant also previously attached the supplemental police report containing

Scrutchens’s interview referencing his observation of Bell with the hammer to his 2017 motion for

leave to file his third successive postconviction petition. The State further argues defendant was

not prejudiced because Scrutchens’s proposed testimony had no reasonable probability of

changing the outcome of defendant’s trial where Scrutchens was not present during the shooting

and the evidence against defendant was overwhelming.

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¶ 44 We review the circuit court's denial of leave to file a successive postconviction petition de

novo. People v. Dorsey, 2021 IL 123010, ¶ 33. The Act provides a process whereby a prisoner can

file a petition asserting that his conviction was the result of a substantial denial of his constitutional

rights. 725 ILCS 5/122-1(a)(1) (West 2020); Dorsey, 2021 IL 123010, ¶ 31. Both the legislature

and our supreme court have made it clear that only one postconviction proceeding is contemplated

under the Act. People v. Edwards, 2012 IL 111711, ¶ 22. It is well settled that successive

postconviction petitions are disfavored. Id. ¶ 29. “Any claim of substantial denial of constitutional

rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2020).

¶ 45 Pursuant to section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2020)), defendant is

prohibited from filing a successive postconviction petition without first obtaining leave of court.

People v. Lusby, 2020 IL 124046, ¶ 27. Generally, such leave is granted only where defendant

establishes cause for his failure to raise the claim in his initial postconviction proceeding, and

prejudice results from that failure. 725 ILCS 5/122-1(f); Dorsey, 2021 IL 123010, ¶ 32. "Cause"

is defined as "any objective factor, external to the defense, which impeded the petitioner's ability

to raise a specific claim in the initial post-conviction proceeding." People v. Pitsonbarger, 205 Ill.

2d 444, 462 (2002). Prejudice occurs where the petitioner is "denied consideration of an error that

so infected the entire trial that the resulting conviction or sentence violates due process." Id. at

464. Defendant must satisfy both prongs of the cause and prejudice test before he will be allowed

to file a successive petition. People v. Davis, 2014 IL 115595, ¶ 14. The court should deny leave

to file a successive petition when it is clear from the petition and supporting documents that the

allegations raised fail as a matter of law or are insufficient to justify further proceedings. Dorsey,

2021 IL 123010, ¶ 33.

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¶ 46 Here, we find defendant failed to satisfy the cause and prejudice test to be granted leave to

file his sixth successive postconviction petition. Defendant alleges his trial counsel rendered

ineffective assistance because counsel failed to call Scrutchens as a witness at his trial over 20

years ago. Defendant asserts he has cause for raising the allegation now and that he could not have

raised it in any of his prior pleadings because he received Scrutchens’s written statement on March

20, 2020. However, defendant’s claim that he was unaware that Scrutchens was a potential defense

witness and unaware of the contents of Scrutchens’s statement is belied by the record.

¶ 47 The record reveals that, on the day of the shooting, defendant and Scrutchens were together

drinking and using drugs in defendant’s apartment, from about 3:30 p.m. until shortly before the

shooting, which occurred about 10:30 p.m. Defendant therefore knew Scrutchens was present at

the scene before, during, and after the initial fight between defendant and Bell, and immediately

prior to the shooting. Defendant even testified at trial that while he and Scrutchens were drinking

that afternoon, Scrutchens told him that Bell had come to defendant’s apartment looking for him.

The record thus shows that, from the date of the shooting, defendant was clearly aware that

Scrutchens was a potential witness for him. Accordingly, defendant could have raised his claim

that counsel was ineffective for failing to call Scrutchens as a witness in his initial postconviction

petition in 2005.

¶ 48 Furthermore, defendant’s motion to file his successive petition and the record indicate that

defendant and trial counsel expected Scrutchens to testify as a witness for the State and expected

him to testify that he saw Bell with a hammer. Defendant expressly stated in his motion that

Scrutchens was listed as a witness for the State and subpoenaed but failed to appear at trial. The

record indicates Scrutchens was listed as a potential witness in the State’s answer to discovery.

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Scrutchens’s name was included in the list of possible witnesses read to the jury venire during voir

dire. Significantly, during her opening statement at trial, defense counsel stated that Scrutchens

saw Bell with a hammer. Counsel stated to the jury:

“Brian Keith [Bell] had a hammer on him. He had a hammer earlier in the day, that hammer

was seen by both Dana, the defendant’s girlfriend, by Gary Scruthens, the defendant’s

friend, and by Darryl Bunch. That’s the hammer that he used to hit Rory Cook when this

fight took place.”

The record also shows that during cross-examination, trial counsel elicited testimony from Hunt

that Bell was holding a hammer in his hand during the initial fight, and that Bell told Hunt if

defendant did not have his money, Bell “was going to kick his ass.” Based on her opening

statement, it appears counsel was prepared to elicit similar testimony from Scrutchens if he had

been called as a witness by the State. Hence, defendant could have challenged counsel’s failure to

call Scrutchens as a witness during his direct appeal or his initial postconviction petition.

¶ 49 In addition, the record shows that in his pro se petition for mandamus filed in July 2014,

defendant claimed he filed a pro se motion to reduce his sentence on April 30, 2001, that the clerk

of the circuit court failed to forward to the court. Defendant attached a copy of his “Motion to

Reduce Sentence” to his mandamus petition. The motion is dated April 25, 2001, which is 13 days

after he was sentenced. In his motion, defendant stated:

“My jury never heard Gary Struchens statement. He made a sworn statement in front of the

grand jury plus he was subpoena to court and never show up. If the jury would have heard

his statement that tell how the victim was attacking Dana, Darrell Bunch, and also Gary

with this hammer they would have found another verdict.”

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¶ 50 Thus, within two weeks of his trial, defendant alleged he was prejudiced by the omission

of Scrutchens’s statement that Bell had attacked Scrutchens, Hunt, and Bunch with a hammer, and

that Scrutchens’s statement would have changed the outcome of his trial. This is substantially the

same claim defendant raised in his instant motion to file a successive postconviction petition. In

Scrutchens’s grand jury testimony, which defendant attached to his instant motion, Scrutchens

acknowledged that he gave a written statement the previous day and that the facts in his written

statement were the same as those he told to the grand jury. These documents show that defendant

was aware of the information contained in Scrutchens’s written statement no later than two weeks

after his trial.

¶ 51 Based on this record, we find that defendant could have raised his allegation that his trial

counsel was ineffective for failing to call Scrutchens as a witness in his initial postconviction

petition filed in 2005. Accordingly, defendant has failed to establish cause for raising his claim in

a successive postconviction petition. 725 ILCS 5/122-1(f); Dorsey, 2021 IL 123010, ¶ 32. Based

on defendant’s failure to satisfy the cause and prejudice test, the circuit court’s denial of his pro se

motion for leave to file a sixth successive postconviction petition was proper. Davis, 2014 IL

115595, ¶ 14.

¶ 52 For these reasons, we affirm the judgment of the circuit court of Cook County.

¶ 53 Affirmed.

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