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06/26/87 the People of the State of v. Fernando Zayas

June 26, 1987





510 N.E.2d 1125, 159 Ill. App. 3d 554, 110 Ill. Dec. 94 1987.IL.888

Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.


On appeal from his jury trial conviction on three counts of murder, defendant Fernando Zayas seeks a new trial based on the following contentions: (1) the jurors were improperly questioned concerning their views on the death penalty; (2) the State improperly utilized its peremptory challenges to exclude one Hispanic and 14 out of 15 blacks from the jury; (3) in opening argument the State alluded to damaging evidence which was never established at trial; (4) the trial court erroneously precluded the defendant from presenting certain exculpatory evidence; (5) the defendant was precluded from impeaching a State witness with his prior record of supervision; (6) the State was permitted to introduce hypnotically enhanced testimony; (7) gruesome photographs were unnecessarily shown to the jury; and (8) a cautionary defense instruction on eyewitness identification was refused.

We affirm.

The following pertinent evidence was adduced at defendant's trial. At about 1:45 a.m. on July 2, 1983, Miguel Vargas, Luis Cuaresma, and Ruben Gutierrez were shot to death on the front porch of a two-flat building at 1438 West Catalpa in Chicago. On the premises at the time of the shooting were Carlos Vargas, Julia Tiro, and Ruby Mateo. Carlos Vargas testified at trial that he had just emerged from the apartment onto the porch to join the victims when he heard a gunshot. He saw the defendant, whom he had known for six or seven years, shooting at the victims from the bottom of the steps. Carlos heard several more shots and then returned inside, where he asked Ruby and Julia to call the police. Carlos initially told the police that he had been in the kitchen and had not seen the shooting. He also admitted that on his instructions Julia and Ruby told the police the same thing. Carlos testified that he did not initially tell the truth because he feared for his family's life. He also testified that he and Miguel Vargas were members of the Insane Unknowns street gang, whereas defendant was a member of the Disciples.

Subsequently on July 13 Carlos told the police that he had seen the defendant shooting at the victims.

Another eyewitness testifying for the State was Timothy McGovern. On the occurrence date McGovern, then 14, lived across the street and two doors to the east of the two-flat building. As he was walking home, at a point three doors from his house, he saw two men leave a car and walk toward the two-flat. When he was two doors from home he heard a gunshot and saw the defendant firing a gun toward the porch of the two-flat. After four or five shots the defendant went north through a gangway.

McGovern also testified that out of fear he did not initially tell the police about what he saw. On August 16, 1983, McGovern's brother Thomas was shot coming into the McGovern home. When two police officers came to investigate that shooting, which Timothy thought might be related to the July 2 shooting, he told them what he had seen on July 2. He subsequently identified the defendant from a book of 150 to 200 photographs and then in a lineup.

Socorro Roldan testified that in 1979 he and the defendant were members of the Latin Disciples street gang. In 1978 one of the victims in the cause, Miguel Vargas, a member of another gang, killed a Latin Disciple named Ramon "Chi Chi" Vasquez. Trial evidence established that Vargas pled guilty to the killing in a juvenile court proceeding. According to Roldan defendant had a tattoo on his arm stating "Chi Chi, rest in peace."

The evening after the shootings Roldan went to a party celebrating those killings. There the defendant told him that he, Jose Rodriguez, Ricky Garcia, and an unnamed fourth person had picked up a car belonging to Jose's sister, Juanita, without her knowing about it. They then drove to the two-flat, where defendant, Garcia and Rodriguez shot the victims, using two .38 caliber guns and a .357. Afterward they ran through the gangway to the car, which they returned to its spot at Juanita's house. A State firearms expert subsequently testified that the bullets recovered from the victims' bodies established that they were shot with .38 caliber and .357 Magnum weapons.

On July 30, 1983, Roldan was hospitalized after being shot by another member of the Latin Disciples. During the investigation of that shooting Roldan told the police of defendant's admissions. Defendant subsequently visited Socorro at the hospital. Police officers were secreted so as to overhear the conversation. (The record indicates that the conversation was taped but the tape was of poor quality and the jury was not informed of it.) When Socorro asked about the triple murder, defendant denied any involvement, but he did say that Jose Rodriguez had been shot by Garcia during the incident. Defendant also told Socorro to be quiet because somebody was "tricking" on him, an expression Socorro understood to mean informing on him. Socorro believed that defendant denied any involvement because defendant believed Socorro was talking to the police.

At trial, over defense objection, the State also elicited testimony from Chicago police detective Michael Atkins, whose recall had been enhanced through hypnosis. Out of the jury's presence, the court first heard the testimony of the hypnotist, Dr. Bennett G. Braun. Braun testified that he was a psychiatrist, a director of the American Board of Hypnotists, and a consultant with the Cook County sheriff's department, holding the title of deputy sheriff. Braun testified extensively concerning his qualifications and the guidelines he followed in hypnotizing Atkins in an attempt to avoid problems of suggestion and confabulation (filling in memory gaps with imagined recall) associated with hypnosis. The court found Braun to be highly qualified in the field and also found the State was not required to establish that hypnosis was a field possessing a reasonable degree of scientific certainty. Detective Atkins then testified, before the jury, that at 1:45 a.m. on the morning of the shooting he and his partner drove to the shooting scene and then continued north two blocks. A light blue car with four male occupants pulled in front of them. One of the passengers kept looking back, and Atkins looked briefly at the license plate. He did not write down the number because they had been told to look for a car containing two female Latins. However, when they returned to the shooting scene, Atkins was told that a light blue two-door car might be involved. This sounded similar to the car Atkins had seen, described by him at the time as a light blue car, probably a Plymouth Sebring, license number XND 045. After being hypnotized Atkins recalled the car as being a light blue, late model two-door Pontiac, with chrome around the rear window, a red and tan sticker on the license plate, and the license number NXJ 402.

Trial evidence established that the license plate of Juanita Rodriguez' car, which defendant allegedly said was used in the shooting, was NXJ 240. Socorro Roldan had also testified that he knew Juanita's car to be a light blue, two-door vehicle.

Defendant presented an alibi defense. Angelo Ferrand, the stepfather of defendant's girlfriend Lateria, testified that defendant and Lateria stayed at Ferrand's Waukegan home from June 30 until July 5. On July 1 he saw the defendant at the Waukegan home in the evening ...

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