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03/10/88 the People of the State of v. Gregory Escobar

March 10, 1988





522 N.E.2d 191, 168 Ill. App. 3d 30, 118 Ill. Dec. 736 1988.IL.341

Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.


JUSTICE LINN delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE McMORROW, Dissenting.


Defendant, Gregory Escobar, was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)) following a jury trial in the circuit court of Cook County. The trial Judge sentenced defendant to the penitentiary for a term of 40 years.

Defendant now appeals, contending: (1) double jeopardy principles bar his being retried after a first trial ended in a mistrial, (2) the evidence adduced at his second trial was insufficient to prove him guilty beyond a reasonable doubt of murder, (3) the trial Judge erred in denying his motion in limine to preclude any reference at trial to polygraph examinations, and that subsequent references at trial to polygraph examinations were prejudicial errors, and (4) his sentence was improper and excessive.

We affirm the judgment of the trial court.


Rudy Lozano and his family lived in the first-floor apartment of a two-flat building at 4035 West 25th Street in Chicago, Illinois. On the morning of June 8, 1983, Lozano was standing at his apartment door speaking with a male person. Minutes later, Lozano was fatally shot. The alleged offender fled on a bicycle. During his flight, the offender rode by Domingo Ochoa.

Chicago police officers arrived on the scene and obtained a description of the offender from Ochoa. They also obtained what appeared to be a material fingerprint from the Lozano home.

An informant led police to believe that Ken Fuentes was responsible for the shooting. Fuentes lived on the second floor of a two-flat building with his brother and girlfriend, Livia Ortiz. On July 1, 1983, the police picked up Fuentes and took him to a police station. The police also obtained and tested a handgun belonging to Fuentes. Fuentes, at first, told the police that he had his gun on the day that Lozano was killed. Later, however, after he learned that he was a suspect in the Lozano shooting, Fuentes changed his story and told police that Alfredo Olvera had possession of his gun at the time of the shooting incident. Ortiz joined and agreed with Fuentes in both his original and revised stories.

Olvera was Fuentes' cousin. Olvera and his family lived in the first-floor apartment of Fuentes' building. The police also took Olvera into custody. Olvera subsequently implicated defendant, also his cousin, in the Lozano shooting. Olvera claimed that he gave Fuentes' gun to defendant on the day before the murder.

The police picked up defendant on the following evening, July 2, 1983. Without any police questioning, defendant volunteered that he owned a handgun and offered it to the police for testing. When the officers learned that the weapon was unregistered, they arrested defendant on a weapons violation charge. At the police station, officers interrogated defendant regarding the Lozano killing. After several hours of interrogation, defendant confessed to the alleged murder.

The police then placed defendant in a voice identification lineup. Lozano's wife could not identify defendant's voice as that of the offender. Further, in a visual lineup, Ochoa could not identify defendant as the offender who rode past him on a bicycle on the morning of the shooting.

Defendant's first trial began on April 4, 1984. Lozano's widow, Ochoa, Fuentes, his brother, Ortiz, several police officers, a ballistics expert, an assistant State's Attorney, and the county coroner testified for the State. Additionally, defendant's confession was read into evidence. The State's evidence is summarized as follows.

On June 7, 1983, the day before Lozano was killed, defendant overheard a conversation between Olvera and others. Olvera offered $5,000 to anyone to kill the victim, because of business dealings between himself and the victim that fell through. Olvera also extended his offer to defendant. Later that night, defendant obtained a handgun from Olvera. The handgun belonged to Fuentes. Defendant took the gun to his apartment that night.

On the morning of June 8, 1983, defendant went to Fuentes' apartment and obtained a blue 10-speed bicycle. He returned to his apartment and placed the pistol that he obtained from Olvera under his belt, covered by his shirt. Defendant then rode the bicycle to the victim's home.

At Lozano's building, defendant parked the bicycle against a fence. He went to the door of Lozano's apartment and knocked and rang the doorbell. The victim answered the door. Defendant asked the victim for permission to enter and then asked for a glass of water. Once inside, defendant thrice asked the victim for the whereabouts of his wife. After receiving his water, defendant put down the glass, took out the gun and shot Lozano three times at close range. Defendant exited the victim's apartment as he entered and fled on the bicycle to his own apartment.

Later that evening, defendant went to Olvera's apartment, returned Fuentes' gun, and asked for the $5,000 reward for killing Lozano. Olvera gave defendant $1,000 worth of cocaine as partial payment and promised to pay defendant the other $4,000 at a later date.

None of the State's witnesses placed defendant at the Lozano home on the date of the killing. Additionally, the bullets that killed Lozano matched Fuentes' gun and not the gun of defendant.

Defense witnesses were defendant himself and a fingerprint examiner. Defendant's evidence was essentially that he was at home and asleep on the morning of the slaying. Defendant confessed to the murder charge because police officers beat and abused him. Additionally, defendant's fingerprints did not match the fingerprint found in the Lozano household. The defense rested its case.

The record shows that the jury began its deliberations on April 10, 1984, after hearing closing arguments and receiving the trial Judge's instructions. At about 3 p.m. that day, the jury sent a note to the trial Judge. The jurors asked the Judge if they should consider the State's "street files," which somehow had gotten into the jury room. Included within the "street files" were police reports, gang photographs, polygraph examination reports, witness statements, newspaper articles about the trial, and other items of what appeared to be inadmissible evidence. The street files were contained in a cart labelled on both sides "GANG CRIMES."

The trial Judge asked the foreman to bring all of the material that the jury viewed into his chambers. The foreman informed the Judge that all of the jurors had examined all of the material. The foreman then returned to the jury room. The Judge asked defense counsel if he should declare a mistrial because the jury had seen the inadmissible evidence. Defense counsel responded: "We'll just have to proceed. We don't want to jeopardize our client's position."

The trial Judge called the jury into court. He questioned the jurors as to whether they could reach an impartial verdict. They responded in the affirmative. The trial Judge again instructed the jury that it should consider only material admitted into evidence. He then ordered the jury to continue their deliberations.

The jurors were sequestered that evening. The next day, April 11, 1984, the jury deliberated from 9 a.m. to 6 p.m. The jury continued its deliberations the next day, April 12, 1984. At 10 a.m., the trial Judge received a note from the jury stating that it was unable to reach a verdict. Defense counsel asked the Judge to give the jury a Prim instruction, urging it to reach a verdict. (People v. Prim (1972), 53 Ill. 2d 62, 74-76, 289 N.E.2d 601, 608-10.) The trial Judge refused the request. Instead, he, sua sponte, declared a mistrial. The Judge did not make any further inquiries of the jury and did not discuss any other alternative with defense counsel.

Some time later, on April 24, 1984, defense counsel presented an objection to the trial Judge's sua sponte declaration of a mistrial and moved to dismiss the cause based on double jeopardy grounds -- that following the mistrial, another trial was legally barred. The trial Judge denied defendant's request.

The record further shows that the second trial began on May 7, 1984. On May 10, 1984, based on the same evidence summarized above, the trial resulted in defendant being convicted of murder. The trial Judge subsequently entered judgment on the verdict and sentenced defendant to a prison term of 40 years. Defendant appeals.

Opinion I

Defendant first contends that his retrial violated the double jeopardy clauses contained in both the Federal and Illinois Constitutions. Those clauses guarantee that no person shall be put in jeopardy twice for the same offense. (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) Defendant argues that since the trial Judge in the instant case declared the mistrial after the jury was selected and sworn, jeopardy had attached and retrial was legally impossible. However, a mistrial order does not necessarily bar a second trial. We must examine the facts of this case to determine the validity of defendant's double jeopardy claim. People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 507-08, 431 N.E.2d 353, 356.

There is no barrier to reprosecution if the mistrial was attributable to the defendant, by virtue of his or her motion or consent. In United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, the United States Supreme Court described the applicable standard:

"[Where] circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." 400 U.S. at 485, 27 L. Ed. 2d at 556, 91 S. Ct. at 557, quoted in Orenic, 88 Ill. 2d at 508, 431 N.E.2d at 357.


Defendant argues that he did not consent to the mistrial. He contends, rather, that he made a timely objection. As discussed above, the jury began its deliberations on April 10, 1984. Later that day, the trial Judge learned that the jury examined the street files, determined that each juror still could reach an impartial verdict, and ordered them to continue their deliberations. The jury deliberated all of the next day.

On the morning of April 12, 1984, the trial Judge received a note from the jury stating, "We would like to come back into court. We cannot reach a unanimous verdict." The trial Judge called out the jury and ascertained that the jury was deadlocked and had no hopes of reaching a verdict. The trial Judge then stated, "Okay. Just go back to the jury room for a few seconds. I'll have you right back out." The record shows that the following proceedings then took place:

"THE COURT: Attorneys?

[Defense Counsel]: My suggestion would be to Prim the jury.

THE COURT: We're wasting our time.

[Defense Counsel]: We've locked them up. There was a lot of evidence talked about. We could at least allow them to deliberate shortly, to see -- perhaps have a hearing on the Prim Instruction.

THE COURT: In light of what went on, what went back to the jury room and everything else, I'm going to declare a mistrial. Bring them out.

[The jurors were brought out.]

THE COURT: Okay. You may be seated. Since you were unable to reach a verdict now after approximately a day, day and a half, or whatever period of time you have been out, we'll declare a mistrial and a hung jury, and another jury will have to decide it. You may go back to the jury room. Jurors withdrawn. Mistrial declared. Thank you.

THE COURT: Okay. We'll recess. We'll wait until 10:00 o'clock and start the rest of the call.

THE CLERK: State of Illinois versus Gregory Escobar.

[Defense Counsel]: Present before the bench is the defendant Gregory Escobar.

THE COURT: Let's hold it on for a week and we'll see what we want to do.

[Defense Counsel]: Not for trial, but --

THE COURT: No, to set a trial date, for any motions you want to make or whatever.

[Defense Counsel]: The 19th, Judge?

THE COURTS: By agreement 4-19, . . .."

The record further shows that the following proceedings occurred on April 19, 1984:

"THE CLERK: The People of the State of Illinois versus Gregory Escobar.

[Defense Counsel]: . . . At this time I'd ask leave to file our Motion to Dismiss. I've tendered a copy to the prosecution. If it would be convenient ...

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