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10/25/89 the People of the State of v. Fernando Zayas

October 25, 1989





546 N.E.2d 513, 131 Ill. 2d 284, 137 Ill. Dec. 568 1989.IL.1690

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Christy S. Berkos, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE MILLER, specially Concurring.


Defendant, Fernando Zayas, was convicted in the circuit court of Cook County on three counts of murder. The court sentenced him to three concurrent terms of life imprisonment without the possibility of parole. The appellate court affirmed the convictions. (159 Ill. App. 3d 554, 568.) We granted defendant's petition for leave to appeal (107 Ill. 2d R. 315). We reverse, holding that a witness other than the defendant himself may not offer testimony to the extent that it is enhanced through hypnosis.

The trial court found defendant guilty of the shooting deaths of Miguel Vargas, Luis Cuaresma and Ruben Gutierrez. These three young men were brutally murdered on the front porch of a building on Chicago's northwest side in the early morning of July 2, 1983. In presenting its case, the State relied principally upon the testimony of four individuals. Defendant challenged the veracity of these witnesses and presented evidence of his own to support his asserted alibi defense.

One of the State's principal witnesses was Socorro Roldan. Roldan, a former gang member with a criminal record, testified that Zayas admitted the killings at a party they both attended. This party was supposedly held the evening following the killings at Zayas' girlfriend's house, and was for the purpose of celebrating the murders. Roldan also testified that Zayas stated that he and three friends, including one named Jose "Baby" Rodriguez, took Juanita Rodriguez's car without her knowledge to aid in the commission of the murders. Juanita is the sister of Jose. Roldan stated that the vehicle was a light-blue, two-door car. The State contends that Zayas' motive for the murders was to avenge the death of his friend "Chi Chi," whose name Zayas had tattooed on his arm. The State was unable to offer any other testimony to corroborate Roldan's assertion that this party occurred or that Zayas confessed to the murders.

Roldan testified that he first related this story to the police on July 30, 1983, almost a month after the murders, after having been shot by a fellow gang member. The police later tried to secure a confession on tape by having Roldan elicit a statement from Zayas while he visited Roldan at the hospital. Zayas did not make such a confession, and in fact denied responsibility, but the State emphasized Zayas' statement that someone was "tricking" on him, indicating that someone was informing the police of the events for which Zayas was allegedly responsible.

The State also called Carlos Vargas, the brother of Miguel Vargas, one of the victims. Vargas testified that he had knowledge of Zayas' association with the "Latin Disciples" street gang and Miguel's association with the "Insane Unknowns" street gang. Vargas further testified that he was on the premises at the time of the shooting and that he saw Zayas firing a gun at the victims. This testimony was corroborated by the testimony of Julia Tiro, who was the cousin of Luis Cuaresma, another victim, and girlfriend of Miguel Vargas, and Ruby Mateo, who was Carlos Vargas' girlfriend.

On cross-examination, defendant's attorney emphasized the fact that Vargas told a substantially different story to the police immediately following the incident. That is, during the initial investigation Vargas told the police that he was in the kitchen cooking when he heard the shots fired, and that he saw nothing. This story was also initially corroborated by Julia Tiro and Ruby Mateo. Vargas stated that he was frightened, which is why he did not come forward with his revised story until July 13, 1983.

Another principal witness upon whom the State relied was Timothy McGovern. McGovern, who was 14 years old at the time of the shooting, testified that he saw Zayas firing a gun at the victims. McGovern stated that he was on his way home from his girlfriend's house at the time, and that his house was almost directly across the street from where the incident occurred. McGovern testified that he witnessed the shooting from across the street, near his home. He was later able to pick Zayas' picture out of a book and then identified Zayas in a line-up.

On cross-examination, defendant's attorney questioned McGovern concerning why he had not related this story to the police until August 16, 1983, six weeks after the murders, when the police were investigating the shooting of his brother. McGovern also stated that he was afraid. Defendant's attorney additionally questioned McGovern concerning the details of the events McGovern claimed he witnessed that evening. Zayas later presented the testimony of an investigator in an attempt to impeach McGovern's testimony by demonstrating that the scenario McGovern described was implausible.

The State also put Detective Michael Atkins on the stand. Detective Atkins testified that, shortly after the murders, he responded to a call which stated that shots had been fired. He stated that when he and his partner approached the scene, however, noticing that other units had already responded and that the street had been secured, they continued on. Detective Atkins testified that they then received another call indicating that two females of Latin ancestry might be involved. He stated that, as he and his partner proceeded, a car containing four males pulled in front of them but that there was nothing unusual about this car apart from the fact that one of its occupants continually looked over his shoulder. Detective Atkins further testified that he then pulled along side another car which four people occupied, two of whom were women appearing to be of Latin ancestry, but that, upon getting a close look, he concluded that they were likely too old to have been involved.

Detective Atkins stated that he then returned to the scene of the shooting where some other officers informed him that a car similar to the car containing the four males that he saw earlier might have been involved. It is not clear from the record why these officers suspected such a car. He testified that, upon reflection, he was able to describe the car as a light-blue Plymouth Sebring with a possible license plate number of XND 405.

On July 22, 1983, Dr. Bennett Braun, a psychiatrist certified in hypnosis, hypnotized Detective Atkins. The purpose of this hypnosis was to aid Detective Atkins in recalling the license plate number of the vehicle which he partially described earlier. Over defendant's objection, Detective Atkins testified that he recalled under hypnosis that the license plate number of the vehicle ...

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