Appeal from the Circuit Court of Cook County; the Hon. Donald
E. Joyce, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Ben Gomez (defendant), and two co-defendants (Jacob Santana and Jesse Alanis) whose cases are not before us, were tried for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2) in a joint bench trial. Defendant was convicted of murder and found not guilty of armed violence. He was sentenced to 25 years' imprisonment.
The parties stipulated: The victim, 17-year-old Serafin Gonzalez, died of multiple gunshot wounds. Pellets from two different caliber guns, four .32-caliber and two .22-caliber, were found at the scene. An additional .32-caliber pellet and two other .22-caliber pellets were also recovered from the body. In the opinion of firearms examiner Richard Fournier, two weapons were used in the shooting.
At trial, Rogello Valasquez testified: On June 11, 1982, at approximately 11:40 p.m., he saw two men wearing hoods run through a gangway adjacent to his home. Soon after, he heard eight or nine gunshots, and then heard the men run back through the gangway.
Chicago police detective John Leonard testified: On July 11, 1982, he interviewed defendant Gomez. After being read his Miranda rights, defendant stated that on the night of the shooting he was with co-defendants, Alanis and Santana, in Alanis' car. Gomez was driving. He stopped the car in an alley. Santana and Alanis got out of the car. They were wearing hooded grey sweatshirts and both were armed. Santana and Alanis walked through a vacant lot while Gomez waited in the car. He then heard several shots, and Alanis and Santana ran back to the car. They told Gomez that they had "hit" somebody. Gomez then drove back "to their neighborhood."
Leonard further testified that he then interviewed co-defendant Santana, who told him: Prior to the shooting, the three co-defendants were in Alanis' car. Alanis was driving. Gomez and Santana were each armed and wearing hooded grey sweatshirts. While Alanis waited in the car, Gomez and Santana walked through a vacant lot. Gomez alone shot the victim. After Gomez and Santana returned to the car, Santana threw his gun out the window.
Following Detective Leonard's testimony, defendant's attorney moved for a mistrial, alleging the State had violated discovery. Defendant contended that the various documents tendered by the State to defendant had all indicated that Santana's custodial statement made to Leonard and others had stated that Gomez was only an unarmed passenger in the defendant's car, and that Gomez had not been involved in the shooting. Gomez' attorney argued that Leonard's trial testimony, in which he stated that Santana's custodial statement was to the effect that Gomez was the actual shooter, was contradictory to all of the discovery provided defendant, and that the State had violated its duty to advise defense counsel that Leonard was going to testify to this completely different statement by Santana. The court denied the motion for a mistrial.
Assistant State's Attorney Edward Pietrucha testified: On July 11, 1982, he and Detectives Leonard and Herigodt interviewed Santana. Santana told them that on the night of the shooting, the three co-defendants were together smoking marijuana. Santana said Alanis wanted to "do a burn" on a member of a rival gang, so the three of them agreed to do so. Alanis went to his home and got a .32-caliber pistol. Santana went to his home and got a .38-caliber pistol. Alanis drove his own car, with Gomez riding in the front seat and Santana in the back. Upon seeing a youth riding a bicycle, Alanis stopped the car. Santana and Alanis, who were wearing grey hooded jackets, exited the car. Alanis alone shot the victim. They returned to the car, and Alanis drove away. Santana threw his gun out of the window.
Detective Michael Herigodt testified to the same custodial statement by Santana as Assistant State's Attorney Pietrucha.
Assistant State's Attorney Rima Cernius testified to an interview he conducted with co-defendant Alanis on July 12, 1982: Alanis there told him that on the night of the shooting Gomez and Santana approached him and told him they each had weapons. Alanis said he saw a bulge in Santana's pants pocket. Alanis told Santana that he would not lend Santana his car, but that he would drive them. Alanis heard Santana and Gomez discuss "burning somebody" from a different gang. As they drove past a person working on his bicycle, Alanis saw Gomez and Santana looking at that person. Alanis parked the car. Gomez and Santana then left, and Alanis drove off immediately and headed home. Later, Gomez and Santana met Alanis at his home and told him that they "had unloaded" and that Alanis should "be careful."
At the conclusion of the State's case, Gomez moved for a directed verdict, which was denied. The court granted Alanis' motion for a directed verdict, finding that the evidence against Alanis (primarily his own custodial statement) showed only that he had "abandoned somebody" a few blocks away from the subsequent murder and that such was insufficient to hold Alanis accountable for the murder. Santana's motion for a directed verdict was denied.
Gomez presented no evidence in his own behalf. Santana testified in his own behalf, presenting an alibi and denying having made any incriminating statements to the police. At the conclusion of the trial, the court found Santana and Gomez guilty of murder. Santana was sentenced to 25 years' imprisonment. Gomez was also sentenced to 25 years, from which he now appeals.
Gomez first contends that the trial court erred when it refused to consider Santana's custodial statement when weighing the evidence against Gomez. At the outset of the trial, the court had denied Gomez' motion for severance, and stated that each of the defendants' custodial statements would "only be used against the individual making the statement unless it is exculpatory." At the conclusion of the trial, the court reversed itself and stated that in considering the evidence against each defendant, it would consider only the particular defendant's own custodial statement and not any of the statements of the co-defendants. Defendant contends that Santana's alleged custodial statement, wherein he said that Gomez was an unarmed passenger who remained in the car during the shooting, should have been considered by the court because it was "exculpatory" to Gomez. Defendant contends that Santana's statement was probative and relevant to the issues and therefore should have been considered by the court as evidence favorable to Gomez.
In Illinois, to be held accountable for a crime, the evidence must show that the defendant (1) solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the offense and (2) that defendant's participation took place before or during the offense and (3) that defendant's participation was accompanied by the concurrent, specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5-2; People v. Tillman (1971), 130 Ill. App.2d 743, 265 N.E.2d 904.) Here, it was the State's theory that Gomez, pursuant to his admission to being the driver of the getaway car, was accountable for the shooting.
Gomez contends that Santana's custodial statement, in which he stated that Gomez was only an unarmed passenger in the car, was exculpatory to Gomez. Gomez posits that Santana's statement was admissible as to Gomez pursuant to Chambers v. ...