People v. Cook

2026 IL App (1st) 240533-U

Opinion

2026 IL App (1st) 240533-U No. 1-24-0533 Order filed March 19, 2026 Fourth 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. 22 CR 1321701 ) RICK COOK, ) Honorable ) Thomas Joseph Hennelly, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE NAVARRO delivered the judgment of the court. Justice Quish concurred in the judgment. Justice Ocasio dissented.

ORDER

¶1 Held: We affirm defendant’s conviction for aggravated unlawful use of a weapon where the State presented sufficient evidence to prove him guilty of the offense, where remarks made during the State’s opening statement were improper but not reversible error, and where defense counsel did not provide ineffective assistance.

¶2 Following a jury trial, defendant Rick Cook was found guilty of two counts of aggravated

unlawful use of a weapon and one count of unlawful use of a weapon by a felon. After the trial

court merged his convictions, it sentenced him to six years’ imprisonment on a single count of No. 1-24-0533

aggravated unlawful use of a weapon. Cook now appeals his conviction contending that: (1) the

State failed to present sufficient evidence to prove him guilty; (2) the State committed reversible

misconduct during its opening statement by referencing various, unrelated mass shootings; and (3)

his defense counsel provided ineffective assistance by failing to object to certain testimony from

a police officer. For the reasons that follow, we affirm Cook’s conviction.

¶3 I. BACKGROUND

¶4 The State charged Cook with two counts of aggravated unlawful use of a weapon, with one

count (Count 1) predicated on him possessing a firearm without having a Firearm Owner’s

Identification (FOID) card and the other count (Count 2) predicated on him possessing a firearm

without a concealed carry license. The State also charged Cook with a third count (Count 3) for

unlawful use of a weapon by a felon.

¶5 The case proceeded to a jury trial. Prior to the parties’ opening statements, the trial court

provided the jury with various admonishments, including that “[o]pening statements are not

evidence and [they] should not be considered as evidence by you. They are merely an aid for you

in understanding the significance of the evidence when it is introduced.” The State began its

opening statement, where an assistant state’s attorney immediately remarked:

“Sandy Hook; Aurora, Colorado; Uvalde, Texas; Route 91 Harvest Music Festival,

Paradise-Las Vegas, Nevada; Highland Park, Illinois. There is not much that needs

to be said to talk about how guns are a danger. They are a weapon. They are made

to be dangerous. That is their purpose. However, there are laws in place in the State

of Illinois to allow you to carry a weapon. Those laws are clear.”

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Defense counsel did not object to the remarks. The assistant state’s attorney continued and

previewed the evidence she expected the State to present at trial. Following defense counsel’s

opening statement, the trial court noted to the jury that, during opening statements, “the prosecutor

referred to some serious incidents of gun violence. Those incidents have nothing to do with this

case and they will not be used in any way, shape or form in arriving at your verdict.” Thereafter,

the State began its case, which occurred over two days. The first day of trial consisted of the

testimony of Chicago Police Officer Nicholas Pocius. The second day of trial consisted of the

testimony of Chicago Police Officers Brandon McDonald and Gerardo Lopez.

¶6 The State’s evidence showed that, in the evening of October 23, 2022, Officers Pocius and

McDonald were working together as part of a tactical patrol unit. Because of their assignment,

they were driving an unmarked police vehicle and wearing civilian clothes, though they wore a

police vest identifying them as police officers. While working that night, they drove by a house on

the 1300 block of West 110th Street in Chicago, where several individuals, including Cook, were

congregating in the grassy parkway between the sidewalk and the street near a parked van.

According to Officer Pocius, he and Officer McDonald were patrolling this area because it was “a

high crime area” for illegal firearms, drugs and a couple robberies of postal workers. At trial,

defense counsel did not object to these remarks. Officer Pocius observed the group of individuals

smoking, and based on the smell, both he and Officer McDonald believed the group was smoking

cannabis. While it was dark outside, the area was illuminated by lighting from houses and street

lamps.

¶7 Officer Pocius wanted to investigate why the individuals were smoking on a public way

and to determine if they were participating in a “repass.” At trial, he explained a “repass” was a

gathering following a funeral that frequently led to a shooting. Although Officer Pocius wanted to

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investigate, he and Officer McDonald were outnumbered, and because situations like these

“usually” involved “multiple illegal guns,” according to Officer Pocius, they temporarily relocated

and called for backup. At trial, defense counsel did not object to these remarks by Officer Pocius.

Shortly thereafter, three additional officers, including Officer Lopez, arrived. The group of officers

drove back to the residence on the 1300 block of West 110th Street, where Officer Pocius once

again saw several individuals, including Cook, smoking what appeared to be cannabis. When

Officer McDonald observed Cook, he noticed that Cook’s hands were inside his front waistband,

an indication that Cook was concealing drugs or a weapon.

¶8 As Officers Pocius and McDonald exited their vehicle and approached Cook, they both

observed Cook quickly walk backward from near the street and begin to sprint down a driveway

toward the house despite commands to stop. Both Officers Pocius and McDonald noticed that

Cook was holding his waistband with his hand, and they both began to chase after him, with Officer

McDonald leading the chase. In the driveway, there was a vehicle parked in the middle. To the

right of the vehicle were cinder blocks and a trash can on the ground as well as part of a chain-link

fence, which left a narrow opening to the right of the vehicle. Further down the driveway on the

right side, there was an air conditioning unit and some lawn chairs adjacent to the residence. While

running, according to Officer Pocius, Cook bumped into the chain-link fence and garbage can,

though Officer McDonald did not observe Cook run into anything. While running after Cook,

Officer Pocius observed an unknown object in Cook’s right hand, then saw Cook’s “right hand

quickly go from his waistband,” as in a “swipe motion,” and heard a “loud ting of metal hitting

metal,” which he believed was a firearm hitting another metal object. Although at trial, Officer

Pocius acknowledged that Cook bumping into the fence could have produced a metallic sound, he

believed the metal-on-metal sound he heard was different. Officer McDonald also observed Cook

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make a “throwing motion” and heard a “loud thump” of metal hitting metal. At trial, however,

both Officers Pocius and McDonald acknowledged never seeing a firearm in Cook’s hands.

Eventually, Officer McDonald and another officer detained Cook in the backyard of the residence.

¶9 During Officer Pocius’ testimony, the defense introduced, and later admitted into evidence,

Defense Exhibit No. 1, which was his body-worn camera footage. Based on the video and Officer

Pocius’ testimony, after Cook was detained in the backyard, Officer Pocius searched the path Cook

had taken, beginning with the area by the fence. While using a flashlight to search the area, Officer

Pocius told another officer that he heard a “cling.” After finding nothing by the fence and the front

of the residence, Officer Pocius searched the side of the residence and found a loaded, semi-

automatic Glock with an extended magazine lying on concrete next to the air conditioning unit.

Officer Pocius then picked up the firearm using his bare hands. Officer Pocius explained at trial

that ideally he would have picked up the firearm using gloves, but, based on the amount of

individuals at the scene, he determined it was not safe to leave the firearm on the ground in order

to retrieve gloves. As a result, the police did not test the firearm for fingerprints. According to

Officers Pocius and McDonald, the only non-police officer near the driveway during the chase was

Cook. While clearing the scene, Officer McDonald found two additional firearms under the van

parked on the street.

¶ 10 During Officer McDonald’s testimony, the State introduced, and later admitted into

evidence, People’s Exhibit No. 4, which was body-worn camera footage of him chasing after

Cook. Because Officer McDonald was running, the video is shaky. Officer McDonald

acknowledged that, in the video, no firearm could be seen. But there is a point in the video where

Cook’s right arm could be seen extended. At this point in the video, Cook appeared to be just

beyond the air conditioning unit. However, prior to reaching near the air conditioning unit, Cook’s

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upper body was obscured based on the nighttime darkness. Also during Officer McDonald’s

testimony, the defense introduced, and later admitted into evidence, Defense Exhibit No. 2, which

was the same body-worn camera footage as in People’s Exhibit No. 4, but slowed down to half-

speed. Officer McDonald testified that, in the video, he could not see Cook throw an object, but

heard a “thump” sound. Still, at trial, Officer McDonald remained adamant that he saw Cook throw

an object, but it was “[n]ot” captured “on the video.” Defense Exhibit No. 1, Officer Pocius’ body-

worn camera footage, likewise did not show a firearm in Cook’s hand. But because Officer Pocius

trailed Officer McDonald, Cook’s flight was barely visible in the video.

¶ 11 Prior to the second day of trial, Cook moved for a mistrial with prejudice based on the

remarks by the assistant state’s attorney during opening statements concerning unrelated mass

shootings. The trial court highlighted that it provided the jury with an instruction to not consider

the remarks and denied Cook’s motion. At the conclusion of the State’s case, it entered into

evidence a stipulation that Cook had not been issued a FOID card or concealed carry license, and

that he had been previously convicted of a qualifying felony offense to support the charge of

unlawful use of a weapon by a felon. The defense rested without presenting any evidence.

¶ 12 After closing arguments, the trial court provided the jury with various instructions,

including that “[o]pening statements are made by the attorneys to acquaint you with the facts they

expect to prove. *** Neither opening statements nor closing arguments are evidence, and any

statement or argument made by the attorneys which is not based on the evidence should be

disregarded.” Following deliberations, the jury found Cook guilty on all three counts. Cook

subsequently filed a posttrial motion, but the court denied it. The court then merged his three

convictions into one conviction for aggravated unlawful use of a weapon predicated on him

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possessing a firearm without having a FOID card, and sentenced him to six years’ imprisonment

on that conviction. This appeal follows.

¶ 13 II. ANALYSIS

¶ 14 A. State’s Request to Strike Portions of Cook’s Brief

¶ 15 In the introduction to Cook’s argument in his brief, he names several Black individuals

who have been killed by the police while engaging in what he describes as “non-threatening,

mundane behavior.” In addition, Cook cites various sources dehors the record detailing alleged

systemic racism within the Chicago Police Department and ultimately levies a claim that the

officers involved in his case were, at the very least, implicitly biased against Black people.

¶ 16 It is well established that the record on appeal is limited to evidence that was produced in

the trial court. People v. Gomez-Ramirez, 2021 IL App (3d) 200121, ¶ 15. As such, we cannot

consider any arguments based on matters outside the record. People v. Woolley, 178 Ill. 2d 175,

204 (1997). Rather than striking portions of Cook’s brief, as requested by the State, we simply

adhere to our principles about the scope of review and only consider matters properly before us.

As such, we will simply ignore any arguments and remarks based on matters dehors the record

and confine our analysis to only the record on appeal.

¶ 17 B. Sufficiency of the Evidence

¶ 18 With that preliminary issue addressed, we turn to Cook’s claims on appeal, starting with

his contention that the State failed to present sufficient evidence to prove beyond a reasonable

doubt that he possessed a firearm to support his aggravated unlawful use of a weapon conviction.

Cook highlights that the State did not present any DNA evidence or fingerprint evidence linking

him to the firearm. Moreover, despite both Officers Pocius and McDonald testifying that he threw

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a firearm while running from them, Cook argues that their body-worn camera video flatly

contradicted their testimony.

¶ 19 When a defendant challenges the sufficiency of the evidence against him, we must

determine whether, when the evidence is viewed in the light most favorable to the State, a rational

trier of fact could have found the elements of the offense proven beyond a reasonable

doubt. People v. Woods, 2023 IL 127794, ¶ 56. “Under this standard of review, it is the

responsibility of the trier of fact to fairly *** resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Internal quotation

marks omitted.) People v. Jackson, 2020 IL 124112, ¶ 64. We afford such deference to the trier of

fact on these issues, in particular witness credibility, because it is in the superior position to

evaluate the credibility of a witness by virtue of observing the witness testify firsthand. People v.

Dorsey, 2023 IL App (1st) 200304, ¶ 114; People v. Rodriguez, 2012 IL App (1st) 072758-B, ¶

45. Given this deference, the reviewing court does not retry the defendant, and thus, we do not

substitute our judgment for that of the trier of fact on issues affecting the credibility of witnesses

or the weight of the evidence. Jackson, 2020 IL 124112, ¶ 64. In turn, a jury’s finding on credibility

“is entitled to great weight.” People v. Smith, 185 Ill. 2d 532, 542 (1999). Yet, “its determination

is not conclusive.” Id. If a witness’s testimony is “too improbable, unconvincing, and contrary to

human experience,” we may reject it. People v. Shaw, 2015 IL App (1st) 123157, ¶ 29. And

similarly, we will not reverse a defendant’s conviction “unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Jackson, 2020 IL

124112, ¶ 64.

¶ 20 To prove Cook guilty of aggravated unlawful use of a weapon predicated on possession of

a firearm without having a FOID card, the State had to prove, inter alia, that he possessed a firearm

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and he did so without having been issued a currently valid FOID card. 720 ILCS 5/24-1.6(a)(1),

(a)(3)(C) (West 2022). Cook does not dispute that he lacked a FOID card, limiting his challenge

on appeal to only whether the evidence sufficiently proved that he possessed a firearm. Whether a

defendant possessed a firearm is a factual issue. People v. Jones, 2019 IL App (1st) 170478, ¶ 27.

Possession can occur through actual possession or constructive possession. Id. This is a case of

actual possession, which can be proven through “testimony that the defendant exercised some form

of dominion over the firearm, such as that he had it on his person, tried to conceal it, or was seen

to discard it.” Id.

¶ 21 In the instant case, when Officers Pocius and McDonald encountered Cook a second time

after obtaining backup, Officer McDonald observed Cook’s hands were concealed in his front

waistband, a sign, according to Officer McDonald, that Cook was in possession of a firearm. See

People v. McGee, 2025 IL App (1st) 231348-U, ¶ 20 (an officer’s testimony that a defendant “was

holding his waistband in a manner consistent with someone who was concealing a firearm” is

evidence helping to prove that the defendant possessed a firearm). When the officers, who were

wearing police vests identifying them as police officers, approached Cook, he immediately ran

from them, which “indicates consciousness of guilt.” People v. Davis, 2023 IL App (1st) 220231,

¶ 42. While Cook concedes that he ran, he posits that his flight does not indicate consciousness of

guilt, but more reasonably demonstrates a fear of police or that he did not even know Officers

Pocius and McDonald were police officers given they were in an unmarked vehicle and wearing

civilian clothes. A fear of police is a plausible explanation for someone fleeing from the police.

See Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (finding that it “is undoubtedly true” that “flight

is not necessarily indicative of ongoing criminal activity”). Likewise, under certain circumstances,

it might be reasonable for an individual to run when an unmarked vehicle stops suddenly in front

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of him or her. See United States v. Amuny, 767 F.2d 1113, 1124 (5th Cir. 1985). But it is equally

plausible that Cook’s flight was based on a consciousness of guilt and his awareness that he was

illegally possessing a firearm, especially given that Officers Pocius and McDonald wore police

vests identifying them as police officers. Such an inference is eminently reasonable (see Davis,

2023 IL App (1st) 220231, ¶ 42), and the jury was therefore entitled to infer Cook’s consciousness

of guilt based on his attempt to flee from the police. See People v. Bell, 234 Ill. App. 3d 631, 637

(1992) (observing that, although “the jury is entitled to draw inferences from the evidence, such

inferences must be reasonable”). In turn, on appeal, we must draw that inference in favor of the

State. See People v. Harvey, 2024 IL 129357, ¶ 19 (when reviewing the evidence in the light most

favorable to the State, “[t]his means that all reasonable inferences from the record in favor of the

prosecution will be allowed”).

¶ 22 Beyond Cook’s initial flight from the police, while he was running away, both Officers

Pocius and McDonald observed Cook make a throwing-type motion using his right arm and both

heard the sound of metal hitting metal. When Officer Pocius searched along the route Cook ran,

he found a firearm. The State’s evidence of Cook’s hands being concealed in his front waistband,

his flight from the police, Officers Pocius and McDonald’s observation of Cook making a throwing

motion and the metal-on-metal sound, and the ultimate recovery of a firearm along the route Cook

ran sufficiently proved that Cook possessed a firearm. For instance, in People v. Lloyd, 2025 IL

App (1st) 232111-U, ¶¶ 5, 12-16, the appellate court found that the State presented sufficient

evidence to prove that a defendant committed the offense of being an armed habitual criminal

based on possession of a firearm where a police officer testified that, upon approaching the

defendant, the defendant walked away and discarded an unknown object on top of a bush that

turned out to be a firearm even though the officer’s body-worn camera footage did not show the

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defendant throwing a firearm. Similarly, in McGee, 2025 IL App (1st) 231348-U, ¶¶ 13, 20, the

appellate court found that the State presented sufficient evidence to prove that a defendant

committed the offense of unlawful use of a weapon by a felon based on possession of a firearm

where two police officers observed the defendant running from them while holding his waistband

in a manner consistent with someone attempting to conceal a firearm, and after he jumped over a

fence, the officers retraced the defendant’s path and found a firearm in plain view.

¶ 23 Although it is indisputable that the State did not present any DNA evidence or fingerprint

evidence linking Cook to the firearm, “[t]he testimony of a single witness is sufficient to convict

if the testimony is positive and credible.” People v. Gray, 2017 IL 120958, ¶ 36. Here, there is the

testimony of two police officers. While Cook does not quarrel with this well-settled principle, he

argues that the testimony of Officers Pocius and McDonald was incredible, primarily based upon

their body-worn camera footage, which Cook argues flatly contradicts their testimony. In turn,

according to Cook, the jury acted unreasonably in finding that he possessed the firearm. First,

Cook highlights that Officers Pocius and McDonald’s body-worn camera footage never showed

him throwing a firearm, let alone possessing a firearm. Second, Cook asserts that the “thump”

sound identified by Officer McDonald in his body-worn camera footage was more consistent with

Cook running into a metal object rather than the sound of a firearm hitting another object. Third,

Cook posits that, while he ran past the air conditioning unit, his arm was not extended and where

Officer McDonald’s body-worn camera footage showed his arm extended, such an action was

more consistent with his arm swinging while sprinting away than him throwing a weapon. Fourth,

Cook notes that, as shown in the body-worn camera footage, he was wearing tight jeans, which he

asserts could not reasonably hold a large firearm, as claimed by the officers.

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¶ 24 During closing arguments, defense counsel made similar arguments to the jury, who,

despite the claimed inadequacies in the State’s case, found Cook guilty. Moreover, each and every

argument Cook makes about the alleged inconsistencies between the testimony of Officers Pocius

and McDonald and their body-worn camera footage, or how certain actions of his could more

reasonably be explained by innocuous conclusions, are all within the province of the jury to

resolve. See Jackson, 2020 IL 124112, ¶ 64. Although we are mindful that, when we review video

evidence, the jury does not occupy a superior position to us like when observing witnesses testify

(see Shaw, 2015 IL App (1st) 123157, ¶ 29), given the confluence of witness testimony and video

evidence, and the need for those critical pieces of evidence to be reconciled, the jury remained in

the best position to assess the totality of the evidence, including the credibility of Officers Pocius

and McDonald. See Lloyd, 2025 IL App (1st) 232111-U, ¶ 15 (observing that “the jury was in the

best position to assess [the officer’s] credibility for themselves by observing the body worn

camera, [the officer’s] demeanor as a witness, and [the] defendant’s impeachment inquiries”).

¶ 25 As noted, we need not accept a jury’s credibility determination if a witness’s testimony is

“too improbable, unconvincing, and contrary to human experience.” Shaw, 2015 IL App (1st)

123157, ¶ 29. Having reviewed Officers Pocius and McDonald’s testimony together with their

body-worn camera footage, their testimony is not so improbable, unconvincing, and contrary to

human experience such that we may reject the jury’s determination that they were credible

witnesses. Critically, Cook ran from the officers, both of whom observed Cook make a throwing-

like motion while running near the air conditioning unit, both heard a metal-on-metal sound, and

a firearm just so happened to be found next to the air conditioning unit, none of which was

conclusively disproven by their body-worn camera footage. While we agree with Cook that, in the

body-worn camera footage of Officer McDonald, his body is clearly illuminated by lights at

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approximately 9:49:58 p.m. and no firearm is visible, Officers Pocius and McDonald began

chasing Cook approximately six seconds earlier. Based on them running after Cook and their

bodies jostling, their body-worn camera footage is shaky, not to mention that, while Cook is

running down the driveway toward the air conditioning unit, his upper body is obscured for critical

split seconds in Officer McDonald’s body-worn camera video based on the nighttime darkness. It

is eminently possible that he discarded the weapon during this timeframe. Moreover, Officers

Pocius and McDonald never expressed any doubt that Cook had tossed a weapon, they never saw

anything in Cook’s hands that was not a weapon, and they did not observe any other civilians

running where Cook ran.

¶ 26 These critical facts are what make the circumstances of the present case different from

those in People v. Bell, 2024 IL App (1st) 200460-U, ¶ 29, a case in which the appellate court

reversed a defendant’s conviction for unlawful use of a weapon by a felon based on insufficient

evidence. There, when two Chicago police officers stopped their unmarked police vehicle

intending to conduct a field interview with three individuals, including the defendant, he along

with another individual ran, both while holding their waistband. Id. ¶ 4. While running after the

defendant, one of the officers observed him grab an object from his waistband and toss it. Id. ¶ 5.

The officer heard a thud sound when the object landed on the ground, and while he could not tell

what the object was, he knew it was dark. Id. The officer eventually lost sight of the defendant,

but began to search the area where the defendant tossed the object. Id. ¶ 6. While searching, he

found a firearm approximately 10 feet from where the defendant had been running. Id. During

cross-examination, the officer acknowledged that, at the time he was chasing after the defendant,

he observed the defendant with a bottle in his hand. Id. ¶ 8. Additionally, in the body-worn camera

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footage from the officer that detained the defendant, the officer could be heard saying “so if [the

defendant] was in the lot[,] we’ll put it on him.” Id. ¶ 11.

¶ 27 In finding that the State presented insufficient evidence, particularly that the defendant

possessed a firearm, the appellate court observed that no officer testified to observing a firearm let

alone the outline of one and that the chasing officer only observed the defendant grab an unknown

object from his waistband and toss it. Id. ¶ 28. The court highlighted that the chasing officer

acknowledged that the defendant had a bottle in his hand at the time and the apprehending officer’s

comment on body-worn camera video that, if the defendant was in the lot, they would “ ‘put it’ ”

on him. Id. To this end, the court noted that “clearly even the officers were not convinced that the

gun they recovered had been in [the defendant’s] possession.” Id. Moreover, because the defendant

was not the only one who ran from the police, the court asserted that the recovered firearm “could

just as well have been in [the] possession” of the other individual who ran from the police. Id. The

critical facts that led the appellate court in Bell to reverse the defendant’s conviction for unlawful

use of a weapon by a felon are not present in the instant case. Consequently, when viewing the

State’s evidence in the light most favorable to it, there was sufficient evidence that Cook

committed aggravated unlawful use of a weapon.

¶ 28 C. State’s Opening Statements

¶ 29 Cook next contends that the State committed reversible misconduct when, during the

beginning of its opening statement, the assistant state’s attorney named the cities of multiple mass

shootings in the United States—Sandy Hook, Aurora, Uvalde, Paradise-Las Vegas and Highland

Park. According to Cook, in naming these incidents, which had nothing to do with his case, the

assistant state’s attorney inflamed the passions of the jury by connecting him to tragic criminal

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behavior when he was not even charged with discharging a firearm and resulted in the jury being

prejudiced against him.

¶ 30 The State, however, posits that Cook forfeited this contention of error by failing to raise a

contemporaneous objection at trial to the allegedly improper remarks. “It is well settled that, to

preserve an issue on appeal, a defendant must object to the purported error at trial and include it in

his written posttrial motion.” People v. Glasper, 234 Ill. 2d 173, 203 (2009). A contemporaneous

objection is required because, “[b]y failing to contemporaneously object at trial, a party denies the

trial court the opportunity to correct errors immediately, and may gain the advantage of obtaining

a later reversal through the failure to act.” People v. Williams, 2017 IL App (1st) 142733, ¶ 46.

Conversely, Cook argues that, by moving for a mistrial, he fully preserved his claim of error.

However, this court has made clear that moving for a mistrial at a later time does not obviate the

need for the earlier, contemporaneous objection to preserve the claim of error for review. See

People v. Euell, 2012 IL App (2d) 101130, ¶ 18. As a result, because Cook has framed his

contention of error as one of prosecutorial misconduct, and not that the trial court erred by denying

a mistrial, his failure to contemporaneously object to the allegedly improper remarks made by the

State during opening statements results in him forfeiting this contention of error.

¶ 31 When a defendant forfeits a contention of error for review, he has two primary procedural

avenues to have the contention reviewed on appeal despite the forfeiture, either through arguing

for plain error or ineffective assistance of counsel for failing to preserve the issue. See People v.

Graham, 206 Ill. 2d 465, 475-77 (2003). The plain-error doctrine applies when

a clear or obvious error has occurred, and either: (1) “the evidence [was] so closely balanced that

the error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error” or (2) the “error [was] so serious that it affected the fairness of the

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defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of

the evidence.” People v. Belknap, 2014 IL 117094, ¶ 48. Under the plain-error doctrine, the

defendant has the burden of persuasion to show plain error occurred. People v. Thompson, 238 Ill.

2d 598, 613 (2010). And thus, “[a] defendant who fails to argue for plain-error review obviously

cannot meet his burden of persuasion.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). Because

Cook is steadfast in his belief that he has preserved this contention of error for review, he has not

argued for plain-error review and therefore, forfeited plain-error review. See id. at 547. Cook also

has not raised a claim of ineffective assistance of counsel related to this contention of error.

¶ 32 Nevertheless, “forfeiture is a limitation on the parties, not the court, and we may exercise

our discretion to review an otherwise forfeited issue.” People v. Curry, 2018 IL App (1st) 152616,

¶ 36. We do so in this case because of the importance of establishing parameters surrounding the

proper remarks the State may make during opening statements. “The purpose of an opening

statement is to apprise the jury of what each party expects the evidence to prove.” People v. Kliner,

185 Ill. 2d 81, 127 (1998). To this end, during an opening statement, the State has wide latitude to

discuss the evidence it intends to present and any reasonable inferences therefrom. Id.; People v.

Jones, 2016 IL App (1st) 141008, ¶ 21. Despite its wide latitude, “comments intending only to

arouse the prejudice and passion of the jury are improper.” Jones, 2016 IL App (1st) 141008, ¶ 21.

However, even if the State makes improper remarks during its opening statement, the remarks are

not automatic grounds for reversal. “Reversible error only occurs where the remarks are

attributable to deliberate misconduct of the prosecutor and result in substantial prejudice to the

defendant.” People v. Smith, 141 Ill. 2d 40, 64 (1990). While we review whether remarks were

improper for an abuse of discretion, we review the more critical question of whether improper

remarks warrant a new trial de novo. People v. Cook, 2018 IL App (1st) 142134, ¶ 64.

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¶ 33 In the instant case, the assistant state’s attorney’s remarks about mass shootings in other

locations, such as Sandy Hook, Aurora, Uvalde, Paradise-Las Vegas and Highland Park, can only

be seen as intending to inflame the passions of the jury. These mass shootings resulted in the deaths

of many individuals, including children, and referencing them only can be seen as fueling the

emotions of jurors at the onset of trial. Notably, the allegations against Cook had nothing to do

with mass murder, a single murder, let alone discharging a weapon. Rather, the allegations against

him were only that he possessed a weapon illegally. While a serious allegation, it is nothing like

what occurred in the horrific shootings in Sandy Hook, Aurora, Uvalde, Paradise-Las Vegas and

Highland Park. The remarks about those incidents were undoubtedly improper (see Jones, 2016

IL App (1st) 141008, ¶ 21), which the trial court also readily acknowledged by sua sponte

instructing the jury to disregard them at the end of the defense’s opening statement.

¶ 34 Despite those remarks being improper, they do not constitute reversible error. The remarks

were brief and fleeting, and as noted, the trial court gave a sua sponte curative instruction directing

the jury to not consider them. See People v. Thomas, 172 Ill. App. 3d 172, 179 (1988) (observing

that “improper prosecutorial remarks can be cured by instruction to the jury to disregard” such

remarks). In addition, before the State’s opening statement, the court provided the jury general

admonishments, including that “[o]pening statements are not evidence and [they] should not be

considered as evidence by you. They are merely an aid for you in understanding the significance

of the evidence when it is introduced.” See People v. Willis, 409 Ill. App. 3d 804, 814 (2011)

(observing that “improper [remarks] can be corrected by proper jury instructions, which carry more

weight than the [remarks] of counsel”). Furthermore, while these comments were the first ones

that the jury heard in the case, any potential prejudice was mitigated by the fact that the trial

occurred over two days. Moreover, the assistant state’s attorney never repeated the remarks, and

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following closing arguments, the court reiterated to the jury that opening statements were not

evidence and any remarks made during them not based on the evidence should be disregarded.

Given these circumstances, we have no doubt that the jury’s focus was on the evidence of the case

and not extraneous comments about serious, unrelated incidents of gun violence made by the State

during opening statements.

¶ 35 Nevertheless, Cook compares the remarks of the assistant state’s attorney in his case to

those in Jones, 2016 IL App (1st) 141008. There, during opening statements, an assistant state’s

attorney referred to the defendant as a “ ‘criminal’ ” four times, including twice after the trial court

told the jury to disregard the comment. Id. ¶ 6. In finding reversible error, the appellate court

observed that the comments were the jury’s first introduction to the defendant and the State’s

repeated reference to him as a criminal “effectively nullified the effect of the court’s instruction to

disregard the State’s characterization of [the] defendant as well as its admonishment that openings

were not evidence.” Id. ¶ 25. In contrast to Jones, the assistant state’s attorney, while referencing

serious, unrelated incidents of gun violence, never labeled Cook a “criminal” or any other

pejorative or derogatory term. And even though the assistant state’s attorney made improper

references to mass shootings, she never repeated the remarks following the trial court’s curative

instruction. As a result, unlike in Jones, the trial court’s instructions cured the assistant state’s

attorney’s improper remarks. Consequently, we cannot say that the State’s comments during

opening statements resulted in substantial prejudice to Cook. See Smith, 141 Ill. 2d at 64.

¶ 36 D. Ineffective Assistance of Counsel

¶ 37 Lastly, Cook contends that his defense counsel provided ineffective assistance by failing

to object to portions of Officer Pocius’ testimony. The first instance occurred when Officer Pocius

described why he and Officer McDonald did not immediately investigate the large group,

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including Cook, congregating in front of the residence on the 1300 block of West 110th Street.

Officer Pocius explained: “There were six people. There is me and my partner. Usually in our past

experiences when we see a group like that there are multiple illegal guns, and just not safe.” The

second instance occurred when the State asked Officer Pocius why he wanted to stop and

investigate the large group. Officer Pocius asserted: “To stop them and see why they were smoking

on the public way and what was going on, what we commonly call a repass.” Officer Pocius then

explained that a “repass” was a gathering following a funeral that frequently led to a shooting. The

final instance occurred when the State asked Officer Pocius why he was patrolling that particular

residential area. In response, he stated: “That’s a high crime area. We had a lot of arrests in that

area, a lot of illegal firearms, drugs, couple of robberies of postmen.” Cook argues that this

testimony from Officer Pocius was irrelevant to the allegations against him and prejudiced the jury

by portraying him as a dangerous criminal.

¶ 38 The United States and Illinois Constitutions guarantee a defendant the right to the effective

assistance of counsel. People v. Gayden, 2020 IL 123505, ¶ 27 (citing U.S. Const., amends. VI,

XIV; Ill. Const. 1970, art. I, § 8). When evaluating claims of ineffective assistance of counsel, the

defendant must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668

(1984). See Gayden, 2020 IL 123505, ¶ 27. Under the test, the defendant must establish that his

counsel’s performance was deficient and the deficient performance prejudiced him. Strickland,

466 U.S. at 687. More specifically, the “defendant must establish both that counsel’s performance

fell below an objective standard of reasonableness and that a reasonable probability exists that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Gayden, 2020 IL 123505, ¶ 27. The defendant must prove both prongs of the Strickland test to

succeed. Id. We review whether the defendant received ineffective assistance of counsel de novo.

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People v. Johnson, 2021 IL 126291, ¶ 52. Because generally, it is easier to dispose of an ineffective

assistance of counsel claim on prejudice grounds, we should do so when the circumstances

allow. People v. Albanese, 104 Ill. 2d 504, 527 (1984) (citing Strickland, 466 U.S. at 697).

¶ 39 In the instant case, Cook has failed to prove prejudice from his attorney’s allegedly

deficient performance in failing to object to the various testimony by Officer Pocius. As we have

discussed in our analysis about the sufficiency of the evidence, Officer McDonald observed

Cook’s hands inside his front waistband, an indication that he was potentially concealing a

weapon, Officers Pocius and McDonald both observed Cook make a throwing-like motion while

near the air conditioning unit and they both heard a metal-on-metal sound. Notably, when Officer

Pocius retraced the route that Cook ran, he just so happened to find a firearm next to the air

conditioning unit. This evidence plus Cook running from the officers, an indication of

consciousness of guilt, and the fact that the body-worn camera footage did not conclusively

disprove any of the officers’ testimony, made the evidence against Cook strong. As a result, the

jury would have found Cook guilty regardless of the admission of Officer Pocius’ testimony about

a “repass,” the potential for multiple, illegal firearms being present based on the group

congregating outside, and the area being one of “high crime.” That is to say, even if Cook’s defense

counsel made successful objections to Officer Pocius’ testimony, there is not a reasonable

probability that he would have been found not guilty of aggravated unlawful use of a weapon.

Consequently, Cook’s ineffective assistance of counsel claim fails.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 42 Affirmed.

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¶ 43 JUSTICE OCASIO, dissenting:

¶ 44 I would reverse because Rick Cook’s trial was tainted by racial bias and prosecutorial

misconduct.

¶ 45 I.

¶ 46 For me, this case is an easy reversal. The problem began with the prosecutor’s opening

statement. The prosecutor started by reciting a litany of some of the most notorious mass shootings

in history. I agree wholeheartedly with the majority that the only reason to do this was to inflame

the jury. The accused is always entitled to a fair trial before an impartial, unbiased jury. People v.

Cole, 54 Ill. 2d 401, 411 (1973). The opening argument was a calculated attempt to prejudice the

jury against Cook. The prosecutor was trying to deprive him of a fundamental constitutional right,

a bias-free and fair trial. This amounts to deliberate prosecutorial misconduct. The trial court

should not have tolerated that, and neither should we.

¶ 47 But in the end, that is exactly what the majority does. To be sure, it condemns the

prosecutor’s flagrant violation of her special duties as a prosecutor. But it then lets her off the hook

on the theory that her transparent effort to violate Cook’s right to a fair trial did not work. Why

not? Because, the majority finds, the prosecutor’s cynical attempt to prejudice the jury was “brief

and fleeting,” the court told the jury to disregard it, and the matter was not raised again over the

two-day-long trial. I do not share the majority’s confidence.

¶ 48 One reason is that, although the State refrained from continuing to name-drop infamous

mass shootings, it kept talking about shootings anyway. It elicited testimony that there had been

shootings in the neighborhood. It elicited testimony that Cook and his companions were engaged

in a post-funeral activity that “usually” ended with a shooting. It even elicited testimony that, if

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the officers did not immediately pick up the gun they found on the ground, the result would, again,

be a shooting. Lest the jurors forget this important information, the prosecutor made sure to remind

them during rebuttal closing argument that the officers had testified that they were aware of

shootings that had taken place. This case did not involve any shootings. Why, then, did that subject

keep coming back up?

¶ 49 The other reason is that the reference to mass shootings was so clearly improper that I find

it impossible to believe that the prosecutor did not anticipate the court’s curative instruction. The

only surprise would have been that the court decided to issue it sua sponte—one would have

expected defense counsel to prompt the court to act by objecting. But that did not deter her: she

went ahead with it anyway. It is fair to infer that she, at least, thought it would be worthwhile, even

if the court gave a curative instruction. One wonders if that is because she knew that the topic of

shootings would rear its head repeatedly over the course of trial.

¶ 50 Whatever her reason, it would seem that her gambit worked. She got to take her shot at

inflaming the jury, and the State got its conviction at the end. At the end of her opening statement,

the prosecutor trumpeted the importance of rules: “We are here because the defendant could not

follow the rules, the same rules that the people in Cook County and the State of Illinois follow

every day.” The rules, it seems, apply to Rick Cook but not to assistant state’s attorneys. Unlike

the majority, I do not think that Cook received the fair trial to which our fundamental law

guarantees him. I would reverse and remand for a new trial.

¶ 51 II.

¶ 52 There is another basis for reversal in this case: the State repeatedly elicited inadmissible

testimony that invited the jury to speculate and appealed, intentionally or not, to implicit racial

biases, and Cook’s attorney failed to object to it.

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¶ 53 It is hardly a secret that racial bias infects our criminal justice system. Our supreme court

acknowledged as much in 2020. See Press Release, Ill. Supreme Court, Supreme Court

Releases Statement on Racial Justice, Next Steps for Judicial Branch (June 22, 2020),

https://www.illinoiscourts.gov [https://perma.cc/E66J-2ZYX].

¶ 54 In recent years, we have paid more and more attention to biases that, unlike intentional

discrimination, easily escapes our notice—what is often termed implicit bias. Implicit biases arise

from our natural cognitive process, which include automatic and unconscious associations that

“can influence our perceptions, judgments, and behaviors without our conscious intent.” L. Song

Richardson, Systemic Triage: Implicit Racial Bias in the Criminal Courtroom, 126 Yale L.J. 862,

875-76 (2017). These processes are not inherently bad. They are, in fact, necessary because they

“help us to cope with all the information that confronts us by making quick, automatic, and

unconscious associations in response to a stimulus.” Id. at 875. But they work by relying on

cognitive shortcuts—including racial stereotypes. Id. at 876.

¶ 55 What does implicit bias mean for criminal trials? Even when judges and juries try their best

to be fair, their implicit biases will always be at play. The reality is that those biases generally

disadvantage Black and Brown defendants. “There is copious evidence that individuals of all races

have implicit racial biases linking blacks with criminality and whites with innocence.” Id. We try

to combat this through education. For instance, we now have pattern jury instructions that address

implicit bias. See Illinois Pattern Jury Instructions, Civil, No. 1.08 (approved May 2018); Illinois

Pattern Jury Instructions, Criminal, No. 1.01B (approved April 30, 2021). The committee

comments to these instructions note that awareness helps, but it does not appear to eliminate the

problem altogether. This makes sense: How can you teach someone to be aware of something that,

by definition, happens automatically or without conscious thought?

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¶ 56 As difficult as it may be to root out implicit bias entirely, we can still limit the damage. In

the context of trials, one obvious thing to do is avoid needlessly exposing juries to evidence that

is likely to play into implicit biases. In our adversarial system, the onus is placed squarely on

counsel to be vigilant in protecting a client’s interests, especially the interest in a fair trial.

Generally, that is done by objecting to evidence that risks activating implicit biases.

¶ 57 The record here, however, shows that defense counsel failed to guard against evidence that

created just that risk.

¶ 58 To begin, Officer Pocius testified that he and his partner were doing routine patrol when

they came across a group of several people gathered in front of a home on West 110th Street and

smoking cannabis. Although they intended to stop and investigate, they did not do so immediately,

he explained, because they were outnumbered. He then elaborated that “[u]sually in our past

experiences when we see a group like that there are multiple illegal guns,” so it was “just not safe”

for them to confront the group without backup.

¶ 59 Here already we have the seed of implicit bias from the loaded phrase “a group like that.”

We have all, at one time or another, read or heard someone use this or similarly vague

circumlocution to avoid uttering an explicit racial stereotype. A group like what, exactly? A group

of Black people smoking cannabis outside on a warm night? If it had been a group of White people

smoking cannabis, would the officer have still assumed that they were illegally armed? Add to that

the officer’s characterization that such a group is “just not safe,” which raised the image of a

racialized menace.

¶ 60 Take note that the officer’s testimony is speculative. He has no idea whether there are any

illegal guns around. Yet by giving voice to his hunch, he does not merely justify his decision to

investigate further, he invites the jury to infer that there was an already high ex ante probability

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that Cook had a gun on him: Aha! The officer said that groups “like that” are usually carrying

guns illegally, so it makes sense that the defendant would be carrying a gun illegally.

¶ 61 The speculation did not end there. Continuing his testimony, Officer Pocius surmised that

the group was having “what we commonly call a repass,” a post-funeral gathering at the deceased’s

home. He opined that these events were rife with substance abuse and, ultimately, violence:

“[U]sually at the repasses there is a lot of drinking and smoking of cannabis.” He then added that

a repass “usually leads to a shooting.” Now, we have leapt from a “group like that” being “just not

safe” to actively manufacturing fear of deadly violence.

¶ 62 Once again, the officer’s testimony is speculative. He does not know that it is a “repass.”

He does not know that anybody is armed. He certainly does not know whether the gathering

presages a shooting. Yet he testifies to all of those things anyway, again inviting the jury to draw

conclusions about whether Cook was likely to be armed based on unsubstantiated conjecture. Even

worse, that conjecture plays right into the seed of racial bias he had just planted when he testified

that people in a “group like that” are usually carrying illegal guns.

¶ 63 Later, at the end of Officer Pocius’s direct examination, the State elicited, totally

unnecessarily, that he and his partner were patrolling that particular neighborhood because it was

“a high crime area” and that there had been “a lot of arrests in that area” as well as “a lot of illegal

firearms [and] drugs.” There had even been a “couple of robberies of postmen.” (No evidence was

presented as to whether mail carriers were often still walking their routes at 9:53 p.m.)

¶ 64 What any of this had to do with whether Rick Cook was in possession of a gun is beyond

me. It seems to be an attempt to suggest an inference of guilt by geographical association: he is in

a dangerous neighborhood, so he must be a dangerous person. And again, it makes that suggestion

using language—the “high crime area” cliché—that “can easily serve as a proxy for race and

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ethnicity.” People v. Harris, 2011 IL App (1st) 103382, ¶ 14 (quoting United States v. Montero-

Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000)).

¶ 65 According to one scholar, using the designation of a high-crime area to justify stopping

and searching an African American based on reasonable suspicion is blatantly racist. The

designation of an area as a high crime area presents two primary issues. Firstly, it permits law

enforcement officers to presume that individuals in these areas are more prone to engaging in

criminal activities. More importantly, such high crime areas often have disproportionately large

African American populations. See Reshaad Shirazi, It’s High Time to Dump the High-Crime Area

Factor, 21 Berkeley J. Crim. L. 76, 84 (2016).

¶ 66 What the foregoing shows is that the jurors in this case heard, without objection, the officer

give testimony that in a subtle yet very real way amounted to a racialized presumption of guilt.

Was that the intent of the officer or the prosecutor who conducted the direct examination? The

answer does not matter. Deliberately or not, this testimony was improper speculation that created

an enhanced risk of prejudice because it played into the kinds of implicit racial biases likely to

affect a juror’s deliberations about a Black defendant.

¶ 67 Cook argues that counsel’s failure to object to this evidence deprived him of his right to

the effective assistance of counsel. I question whether it should even be necessary to go that far.

A claim of ineffective assistance is, at root, a claim that the proceeding was itself unfair; counsel’s

inadequate representation is merely the particular circumstance leading to that conclusion. See

Strickland v. Washington, 466 U.S. 668, 694 (1984). I would submit that, when racial bias is

injected into a criminal trial, that fact alone taints the fairness of the proceeding such that we should

not presume that the verdict of guilt is worth relying on, and the onus should be on the State to

show beyond a reasonable doubt that racial bias was not responsible in any way for the verdict.

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See Chapman v. California, 386 U.S. 18, 24 (1967) (“Certainly error, constitutional error, in

illegally admitting highly prejudicial evidence or comments, casts on someone other than the

person prejudiced by it a burden to show that it was harmless. *** We, therefore, *** hold ***

that before a federal constitutional error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.”). I do not think that burden can be met in

this case.

¶ 68 Even so, Cook has shown that counsel’s failure to object to this evidence amounted to

ineffective assistance. All of the testimony I have discussed was objectionable, whether on grounds

of relevance (Ill. Rs. Evid. 401, 402 (eff. Jan. 1, 2011)), lack of personal knowledge (Ill. R. Evid.

602 (eff. Jan. 1, 2011)), improper opinion (Ill. R. Evid. 701 (eff. Jan. 1, 2011)), or danger of unfair

prejudice (Ill. R. Evid. 403 (eff. Jan. 1, 2011)). The State defends this evidence under the too-

easily abused course-of-investigation theory. See generally People v. Boling, 2014 IL App (4th)

120634, ¶¶ 116-118 (bemoaning the “repeated abuse” of this theory of relevance as a means of

eliciting hearsay). Nonsense. The only testimony necessary to explain why the police were there

and why they decided to initiate the stop were that (1) the officers were on a routine patrol and (2)

they initiated the sidewalk stop because there were people openly smoking cannabis on the public

way. The officer’s personal speculations and hunches about the nature of the group he saw, what

they were doing, and whether they were illegally armed were, at best, marginally relevant. Any

proper probative value that testimony carried was easily outweighed by the danger of unfairly

prejudicing the jury. See Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 69 This testimony was inadmissible and highly prejudicial. Counsel’s failure to object to its

admission therefore amounted to deficient performance. See People v. Moore, 279 Ill. App. 3d

152, 159 (“Sound trial strategy *** embraces the use of established rules of evidence and

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procedure to avoid, when possible, the admission of incriminating statements, harmful opinions,

and prejudicial facts.”).

¶ 70 The majority does not reach deficient performance, instead finding that this testimony was

not prejudicial because the evidence of guilt was “strong.” I do not think it was. The evidence

showed that Cook was holding his waistband, Cook ran from the police, the police saw him make

a throwing or swiping motion, the police heard a metallic sound, and, after Cook was apprehended,

an officer found a gun near the path Cook had taken. Cook did not make any admissions. Nobody

testified to seeing him with a gun. There was no forensic evidence tying him to the gun. Even if

this evidence was enough to sustain a conviction under the deferential sufficiency-of-the-evidence

standard, a different trier of fact might well have found that the State had not met its high burden.

Prejudice can occur whenever a verdict of not guilty would have been reasonable. People v. Rouse,

2022 IL App (1st) 210761, ¶ 61.

¶ 71 The majority avers further that Cook’s running from police insinuates consciousness of

guilt. Again, I respectfully disagree. An innocent person might flee from police if he or she

“believes that contact with the police can itself be dangerous.” Illinois v. Wardlow, 528 U.S. 119,

132 (2000) (Stevens, J., concurring in part). Author and journalist Ta-Nehisi Coates has explained,

“All you need to understand is that the [police] officer carries with him the power of the American

state and the weight of the American legacy, and they necessitate that of the bodies destroyed every

year, some wild and disproportionate number of them will be black.” Ta-Nehisi Coates, Between

the World and Me 103 (2015). A Black man fleeing at the sight of the Chicago police is just as

easily understood as a response to the “measurable amount of fear and distrust of police” found in

many of the city’s communities. See People v. Horton, 2019 IL App (1st) 142019-B; see also E.

Ashby Plant & B. Michelle Peruche, The Consequences of Race for Police Officers’ Responses to

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Criminal Suspects, 16 Psych. Sci. 180, 182 (2005) (finding that sample of police officers in

computer-based experiment were “initially more likely to mistakenly shoot unarmed Black

suspects than unarmed White suspects”). When choosing which inference to draw, Cook’s jury

had been primed by Officer Pocius’s testimony to pick the inculpatory one.

¶ 72 And this weak case was not presented until the seed of bias had been planted. Officer

Pocius’s testimony primed the jury to believe that Cook was armed. The officer told the jury that

he knew “group[s] like that” would “[u]sually” have “multiple illegal guns.” He also told the jury

that, absent intervention, a repass would “usually lead[ ] to a shooting.” In his telling, the discovery

of a gun was not just possible—it was practically inevitable. The determinative issue at trial was

whether Cook had a gun that he disposed of when the police showed up and chased him. Officer

Pocius’s improper opinion gave the jury a basis to overlook the absence of strong evidence tying

Cook to the gun.

¶ 73 Worse, the State actually highlighted Officer Pocius’s speculation during its rebuttal

closing argument:

“And Officer Lopez’s body camera, you saw when his body turned, there was that

group of people by that van smoking a joint. That’s exactly what they were there to

investigate, what’s going on. And lo and behold, there were two guns just underneath that

van. The officers’ instincts, their knowledge, their training, their experience, they were

correct.

What else were they[ ] correct about? Seeing this defendant with his hands on his

waist, seeing this defendant throw an object. They didn’t lie to you. They didn’t tell you

they saw that object to be a gun. They didn’t tell you any of that because they told you the

truth. In the waistband, flung it out, and threw it.” (Emphasis added.)

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¶ 74 Given that the State actually drew the jury’s attention on this inadmissible and prejudicial

testimony, I cannot say with any confidence that counsel’s failure to object had no effect on the

verdict. That is, by definition, the prejudice necessary to establish ineffective assistance of counsel.

Strickland, 466 U.S. at 694 (“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.”).

¶ 75 III.

¶ 76 In my view, either of these issues—the State’s deliberate attempt to prejudice Cook’s right

to a fair trial and counsel’s ineffective failure to object to Officer Pocius’s speculative and bias-

activating testimony—warrant a new trial. I respectfully dissent.

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