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10/01/87 the People of the State of v. Jesse Pico Et Al.

October 1, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JESSE PICO ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

514 N.E.2d 224, 161 Ill. App. 3d 225, 112 Ill. Dec. 758

Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding. 1987.IL.1477

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

We have consolidated for opinion the appeals of Jesse Pico and Rudy Mauricio, as they were convicted together following a joint jury trial and seek reversal on similar grounds. These codefendants, who were tried with Paul Mauricio, assert that they were denied their constitutional right to effective assistance of counsel because one attorney's representation of all three co-defendants presented a conflict of interest and because the admission of Paul Mauricio's statement denied them their sixth amendment right to confrontation. We agree and therefore reverse and remand for a new trial.

This case arises out of a shooting incident which occurred in Joliet, Illinois. Although many of the facts are in dispute, it was agreed that the codefendants, Jesse Pico, Rudy Mauricio, and Paul Mauricio (Paul), were at the Mauricio residence sometime after 1 a.m. on May 26, 1985, when the victim, Paul Lair (Lair), rode past on a small motorcycle. At trial, Lair testified that he had previously been friends with the Mauricio brothers and had participated in gang activities with them, although he was not a member of the gang to which they belonged. Lair further testified that for a few months prior to this incident he had been avoiding the Mauricios because he was frightened by the gang activities. He indicated that the Mauricios had "hassled" him because of his decision to avoid the gang activities.

Lair stated that as he drove by the Mauricio residence on May 26, he saw Rudy backing a car with two passengers out of the driveway. Lair testified that he had no weapons in his possession and that as he drove past, he said nothing and made no hand gestures to anyone at the residence. He then heard the car's horn honking and he noticed that the car followed him as he went around the block, so he intended to drive to the police station to file a complaint. As he drove rapidly toward the police station, with the car Rudy was driving still behind him, Lair reportedly heard a little shot and felt a stinging in his back.

After he reported the incident to the police, an officer drove Lair to the hospital. While en route, they saw the car Rudy had been driving, so the officer pulled the car over. Rudy was in the driver's seat, Jesse was in the front passenger seat, and Paul was in the backseat. From the floor of the backseat of the vehicle, a police officer removed an empty shotgun shell and a shotgun containing a live shell.

Lair was then taken to the hospital. Three birdshot pellets were removed from his back and he was released later that morning.

The defendants did not testify at trial, but after they were arrested, they made statements to several police officers who then testified at trial. Officer James Powers testified about his interview with Paul Mauricio. According to Paul, when Lair drove by the Mauricio residence on his motorcycle, he fired a gun in the direction of the house and then rode around the block. Paul told Officer Powers that he ran into his house to obtain a shotgun and when he exited the house, he saw Lair driving down the street away from the Mauricio residence. Paul stated that he then went into the street and fired the shotgun at Lair. Officer Powers testified that Paul then told him that he, Rudy, and Jesse got into the car and went looking for Lair.

Officer Judith Mericle testified about information she obtained during an interview with Jesse Pico. Jesse told the officer that as Lair drove by the Mauricio residence on his motorcycle, he slowed down and yelled something unintelligible before pulling away. Jesse said that Paul then picked up the shotgun which was in the front yard with him and fired a shot at Lair as he rode away. Then, according to Jesse, the three got into the car to buy beer. Jesse reportedly told Officer Mericle that he did not see Lair brandish or shoot a gun, but that Paul took the shotgun in the car with them for security purposes, in the event that Lair returned to shoot at them.

Officer James Klancher spoke with Rudy while he completed the necessary booking procedures. The officer testified that Rudy stated that he and the others had just gone out to buy beer and that someone shot at them. When the officer asked Rudy who they shot at, Rudy reportedly said, "We were shooting at pigeons."

After the State presented its case, defense counsel rested without presenting evidence and the case went to the jury. Each of the codefendants was found guilty of one count of armed violence predicated upon aggravated battery on a public way and one count of aggravated battery predicated upon great bodily harm; the trial court later vacated the aggravated battery convictions. Jesse Pico was sentenced ...


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