APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
526 N.E.2d 172, 171 Ill. App. 3d 936, 122 Ill. Dec. 32 1988.IL.758
Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE MURRAY, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Following a jury trial, defendant, Juan Mendiola, was convicted of murder and sentenced to a prison term of 33 years. The sole issue at trial was the authenticity of the identification of the defendant as the driver of the car from which the unknown passenger shot and killed Anthony Krause. On appeal, defendant contends for reversal that the evidence failed to establish beyond a reasonable doubt that he was the offender, that prejudicial and inadmissible hearsay statements were admitted into evidence and that defendant was irreparably prejudiced by prosecutorial misconduct.
The trial evidence revealed the following: On October 19, 1984, at approximately 2:40 a.m. near West 24th and South Washtenaw Streets in Chicago, the victim, Anthony Krause, Jack Collier, Alexander Damaio and Leo Fay were walking from a block party. Krause and Collier stepped into an alley to urinate. Damaio and Fay waited a short distance from the alley. Collier noticed a car with two men inside traveling along West 25th Street. The car slowed down as it approached Fay and Damaio. When the car reached Krause and Collier it came to a complete stop. The passenger in the car leaned over the driver, pointed a rifle out the driver's window and fired a shot. The bullet hit Krause in the forehead and killed him. The car sped away.
Collier testified that he and Krause, along with Damaio and Fay, were at a block party on the night of the shooting. Collier testified that at the block party he drank beer and smoked marijuana, but that he did not use any of the THC (Tetrahydrocannobinol), an illegal drug, or the other drugs that were available at the block party. Collier stated that Damaio and Fay ingested THC.
Collier testified that he, Krause, Damaio and Fay walked on 24th Street and Collier stopped in an alley to show Krause something that had been written about him on a building. Collier testified that he was leaning against a building and the victim was urinating when Collier noticed a slowly approaching car. Fay yelled, "Look out!" just as the car stopped about 15 feet away from Collier and Krause. The driver of the car looked at Collier and Krause, then looked at the passenger, smiled and nodded yes. The driver of the car then leaned back so that the passenger could lean across him and point a rifle out the car window at Krause. Collier stated that he stepped closer to the car and noticed the trigger of the gun. Collier further testified that when he moved away from the car, the passenger fired a shot which struck Krause in the forehead. The car then sped away.
At trial, Collier made an in-court identification of the defendant Juan Mendiola as the person who was the driver of the car. Collier described the passenger, the shooter, to the jury as a blond, white male. Collier testified that he knew defendant, that the defendant was a member of a street gang which was an enemy of Collier's street gang, that he had known the defendant for five years before the shooting and that he recognized the defendant when the shooting occurred. Collier also identified a photograph of the defendant's car and testified that he recognized it as the car from which the fatal shot was fired.
Collier testified that he was questioned by the police at the hospital to which the victim was taken about the identification of the shooter and of the car in which the shooter was riding. He did not then identify either the defendant or the car. Collier testified that he lied to the police when he stated that he did not recognize either the driver of the car or the car. He asserted, however, that he then gave the police an accurate, though limited, description of the driver. Collier testified that he told the police officer who interviewed him that the driver of the car was a white Latin male with straight black hair. Collier also testified that he gave the police officer a fabricated description of the car. He told the officer, immediately after the shooting, that the car used in the killing was a red Chevrolet Chevette, a compact car. At trial, however, defendant's car was shown to be a brown Oldsmobile Ninety-eight, a full-sized car.
Collier testified that he was a member of a gang which was a rival of the gang to which defendant belonged. Collier admitted that gang members lie and knowingly and falsely accuse rival gang members of committing offenses out of revenge and to protect fellow gang members as well. Collier stated that he lied to the police officer who questioned him because he was afraid to tell the officer the truth and because his mother told him not to identify the defendant. Collier conceded, however, that he did not talk to his mother until after the police had questioned him at the scene of the shooting and at the hospital.
Nine days after the shooting, Collier viewed a lineup in which the defendant was a participant. Collier admitted that when he first viewed this lineup he told the police that he did not recognize anyone in the lineup. Shortly after Collier had viewed this lineup, the police took Collier to an interview room where Damaio and Fay were waiting. Collier testified that Damaio told him that he, Damaio, had identified defendant in the lineup as the driver of the car from which Krause was shot. Collier testified that he thereupon left the interview room and went to tell the police officers that defendant was the driver of the car. Collier stated that he identified the only person in the lineup who was referred to by the nickname "Ricco" in the interview room. Detective Lahm, who conducted the lineup, testified that when Collier came out of the interview room he identified the driver of the car as "Ricco."
Collier denied that he told an acquaintance, Jessie Rosardo, that when Krause was shot he, Collier, was urinating in the alley and that only when he heard the rifle shot did he exit the alley and find Krause lying on the ground. When Rosardo testified later as a State's witness, however, he related that Collier had made these statements to him.
Alexander Damaio, a witness for the State, testified that immediately prior to the shooting he stopped to converse with Fay while Collier and Krause went into the alley to urinate. Fay had his back to the wall, and Damaio, who was facing Fay, had his back to the street. Fay warned Damaio to look out for an approaching car. Damaio turned around, looked at the car for a second or a half second, and then turned away, according to Damaio's testimony.
Later, Damaio testified, he was shown the defendant's family car in the auto pound. Damaio testified that he could not tell the make of the car. Damaio said that he told the police that from a side view of the car he thought it was the car used in the shooting, but that he could not be positive. He testified that he remembered only that the car was big and dark and had opera lights.
Damaio testified that even though it was after midnight when the shooting occurred he was wearing sunglasses. He further stated that he smoked marijuana, drank beer and snorted THC through his nose at the block party. Damaio testified that his vision was distorted because he had used drugs. At the time of the trial, Damaio was on probation for possession of a controlled substance.
Leo Fay testified on behalf of the State. Fay testified that the car involved in the shooting was a large, copper-colored car with a beige top, resembling either a Buick Electra 225 or an Oldsmobile Ninety-eight, and that he gave the police this description. (Police officers Patrick Gordon and James Gruber both later testified that Fay did not give them this description. In fact, Gruber testified that Fay described the car as being similar to a Plymouth. Officer Gordon described the car which was registered to defendant and his brother Jesus as an Oldsmobile Ninety-eight, with opera lights and a broken taillight.) Fay testified that when he saw the car speeding away on the night of the shooting he did not notice any of these details. Fay was shown a photograph of the Mendiola car and testified that he did not see the opera lights on the car used in the shooting. Fay stated, "I wasn't paying attention to it." A few days after the shooting, Fay testified, the police showed Fay two different cars with various ornaments. Fay did not identify either of these two cars as the one used in the shooting. Fay testified that he was then shown the Mendiola car and he identified it as the car used in the shooting.
Fay further testified that he used heroin, cocaine and amphetamines, and at the time of the shooting he had had amphetamines and some beers. Fay was in prison and was enrolled in the prison's drug rehabilitation program at the time of the trial. Fay also testified that he was a former member of the Disciples street gang.
Officer Thomas Lahm testified that he was assigned to investigate the fatal shooting of Krause. Six days after Krause was shot, Officer Lahm and two other officers located what they believed was the car used in the shooting. They had the car towed to the police garage. Later that day, defendant's brother, Jesus Mendiola, went to the police station and inquired as to why his car had been towed. Shortly thereafter, Officer Lahm testified, defendant, Juan Mendiola, joined his brother Jesus at the police station, claimed that he also owned the car, and asked why it had been towed. Officer Lahm explained to the defendant and his brother Jesus that the car had been identified as the car used in the commission of a homicide. Both men were then placed under arrest.
Officer Lahm testified that two days later, defendant and Jesus Mendiola were placed in a lineup which was viewed by Collier. Collier told Officer Lahm that he did not recognize anyone in the lineup. Collier was then placed in an interview room with Damaio and Fay. Then, Officer Lahm testified, several minutes later, Collier left the interview room and told the police that he had lied and that he recognized "Ricco" Mendiola, defendant, in the lineup as the driver of the car used in the shooting.
Four alibi witnesses testified on behalf of the defendant. Maria Garcia testified that she went to the Mendiola home on the evening of October 18, 1984. Defendant was at home with Maria Medina, defendant's girlfriend; Guadalupe Rico, defendant's mother; and Victoria Mendiola, defendant's sister. Maria Garcia testified that she and Victoria Mendiola went out for the evening, and when they returned to the defendant's home at approximately 2 o'clock on the morning of October 19, 1984, the defendant, Juan Mendiola, was there watching television. Maria Garcia related that she, Victoria Mendiola and the defendant remained at the house together until Garcia left at 3:15 a.m. Victoria Mendiola's testimony corroborated Maria Garcia's testimony in every particular.
Maria Medina testified that on the night of the shooting she was living with the defendant, who is the father of her children. Medina testified that after Maria Garcia and Victoria Mendiola went out, she remained with defendant and watched television until 10:30 or 11 p.m., when she went to bed. Maria Medina testified that when she awoke, she found the defendant asleep in the living room.
Guadalupe Rico testified that she was at home with defendant, Maria Garcia, Maria Medina, and Victoria Mendiola on the night of the shooting. She testified that when she went to bed at 10:30 or 11 p.m., defendant was there. Rico did not know if defendant was at home the next morning when she awoke.
On appeal, defendant first contends that the identification testimony of Collier failed to establish beyond a reasonable doubt the identity of defendant as the driver of the car. Defendant also maintains that the evidence likewise failed to establish that it was his car that was used in the shooting. It is the function of the trier of fact to determine the credibility of the witnesses. (People v. Akis (1976), 63 Ill. 2d 296, 298.) Moreover, a court of review will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of defendant's guilt. (People v. Green (1982), 104 Ill. App. 3d 278, 284, 432 N.E.2d 937.) Factors which may be considered in evaluating identification testimony include the opportunity of the witness to view the offender at the time of the crime, the witness' degree of attention, the accuracy of the prior description of the offender, the level of certainty demonstrated by the witness at the time of the identification confrontation, and the length of time between the crime and the identification confrontation. (People v. Green (1982), 104 Ill. App. 3d 278, 284, 432 N.E.2d 937.) While the evidence in this case is close, it is sufficient, if believed, for the jury to make a de jure determination of defendant's guilt. A court of review will not substitute its judgment for that of the trier of fact where the evidence is merely conflicting. (People v. Akis (1976), 63 Ill. 2d 296, 298-99.) We decline, therefore, to disturb the jury's verdict on the basis of reasonable doubt.
Defendant next contends that there were several evidentiary rulings which extremely prejudiced defendant and that the jury's verdict of guilty should therefore be reversed. Specifically, defendant cites as error the introduction of inadmissible, prejudicial hearsay statements made by defendant's brother Jesus to the police. These statements, defendant contends, tended to exculpate Jesus Mendiola, while inculpating defendant in the commission of the shooting.
The prosecutor cross-examined defendant's sister, Victoria Mendiola, who testified that defendant was at home at the time of the shooting. Jesus Mendiola, defendant's brother, was not mentioned by any of the witnesses as having been at the Mendiola home at that time. However, the prosecutor cross-examined Victoria Mendiola about what ...