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01/07/94 PEOPLE STATE ILLINOIS v. FERNANDO HERRERA

January 7, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FERNANDO HERRERA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Barbara J. Disko, Judge Presiding.

Released for Publication March 18, 1994.

Giannis, Egan, McNAMARA

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Following a jury trial, defendant was convicted of one count of first degree murder and was sentenced to a term of 27 years. Defendant appeals his conviction, contending that (1) the State presented insufficient evidence to prove him guilty beyond a reasonable doubt, (2) the trial court committed reversible error by restricting defendant's right to cross-examine witnesses, and (3) he was deprived of the right to a fair trial by certain inflammatory and prejudicial comments made by the prosecutor during closing argument.

The record reveals that defendant was charged on April 30, 1991, with one count of armed violence and with two counts of murder in connection with the death of Enrique SiFuentes on November 22, 1985.

At trial, Francisco Lopez testified that he was 23 years old and was 16 years old on November 22, 1985, the date of the shooting of Enrique SiFuentes. On the night of the shooting, Lopez was at home with SiFuentes, who was then 15 years old. At approximately 11 p.m., Adrian Hernandez, who was then 18 years old, arrived at Lopez's home. Shortly after Hernandez arrived, all three individuals went out to eat at a taco restaurant located on the northeast corner of Blue Island and Damen. After they finished eating, Lopez walked out of the restaurant first, followed by SiFuentes, and Hernandez stayed in the restaurant in order to pay the bill. As Lopez walked out of the restaurant, he was looking eastbound on Blue Island and noticed two cars approaching the intersection very slowly. A gray car was traveling in the lane closest to the sidewalk while a black car was traveling in the middle lane behind the gray car. Both cars had black windows. The front window on the passenger side of the gray car was rolled down, and Lopez saw an individual waving his hand as if making gang signals. These hand signals formed the letters "V" and "L." The black car in the middle lane moved ahead of the gray car, and Lopez noticed another person sticking his hand out of the front passenger's window of the black car. After Lopez turned around and told his friends to look at the cars, he then heard two shots. Upon hearing the shots, Lopez turned to face the cars. Lopez testified that the shots came from the black car which was in the middle lane. Both cars then drove away. SiFuentes had been shot in the right temple and did not respond when Lopez called out to him. Lopez and Hernandez then ran one block to a police station. When they returned to the scene with the police, the two cars were gone.

Lopez testified that he had never been in a gang. He did not know if SiFuentes or Hernandez were ever in a gang. At the time of trial, Hernandez was deceased.

On cross-examination, Lopez testified that there seemed to be two people in the gray car and four people in the black car. Lopez stated that the incident happened very quickly, and he could not identify the person who had fired the shots. Lopez could not identify defendant at trial as one of the individuals in either of the two cars. Lopez also viewed a lineup in March 1991, 10 months prior to trial, but he could not tell if defendant was present in the lineup.

After Lopez was excused, the prosecutor made an oral motion in limine to exclude any evidence that the gun which was used in the shooting of SiFuentes might also have been used in two other shootings later that same night. In response, defense counsel argued as follows:

"I think that if the witness takes the stand and testifies to certain events that happened that evening and indicates that someone else is the shooter, and he then gives a statement to the police in effect telling his role in this case and in two others that happened that very evening, in fact with the same .22-caliber that was alleged to have been used in this case, that I certainly should be able to ask that witness what he said to the police about those two other shootings and his involvement in two other shootings. That goes to his credibility and goes to the jury's opinion of that witness and his credibility. And what he has done and what he's admitted to doing on that same evening with that same weapon."

The trial court reserved its ruling on the State's motion in limine until after Arturo Cardona had testified on direct.

Arturo Cardona testified that he was 27 years old and had been employed for three years at a foundry, where he worked to support his wife and child.

Cardona testified that in November 1985, he owned a gray 1978 Pontiac Catalina. Cardona identified defendant at trial and stated that at the time of the shooting, both he and defendant were members of the Villa Lobo street gang. At approximately 10 p.m. on November 22, 1985, Cardona was at a bar with defendant. Other members of the Villa Lobo street gang who were also present in the bar that night included Antonio Ascencio, Gabriel Baez, David Bege, and Ramon Bege. The bar was located in the vicinity of Blue Island and 18th Street. As he and his companions left the bar, Cardona saw Baez give a .22-caliber, long-barrel revolver to defendant, who put the gun in the waistband of his pants.

Defendant got into Cardona's car along with David and Ramon Bege. Cardona was driving, and defendant was in the front passenger seat while David and Ramon Bege rode in the back seat. Baez also left the bar and got into his gray Impala with Ascencio. After leaving the bar, both cars drove to Blue Island toward defendant's garage which as located at 2318 South Ridgeway. As they approached the intersection of Damen and Blue Island where the taco restaurant was located, the traffic light was red, and both cars slowed down. Cardona's car was in the middle lane of traffic, and Baez's car was in the lane closest to the curb where the restaurant was located. When the two cars stopped for the red light, Cardona's car, which was in the middle lane, was approximately one-half car length in front of Baez's car.

Before the traffic light turned green, Baez beeped his horn, and Cardona noticed three kids coming out of the restaurant. The kids did not have gang colors on. When the light turned green, Cardona saw Baez point at the kids who had come out of the restaurant. As he pulled away from the intersection, Cardona felt some cold air and heard a shot coming from his right side, where defendant was sitting at the time. Cardona then heard defendant say, "I think I got one." Cardona did not reply, but continued driving west on Blue Island, as did Baez. Cardona testified that after he heard the shot, he did not see the gun in defendant's hand. When they arrived at defendant's garage, defendant got out of the car, and Cardona drove home. Cardona testified that he did not see anyone else with a gun that night, and he had no prior knowledge that defendant intended to shoot SiFuentes.

Cardona testified that on the evening of December 29, 1985, five weeks after the shooting, he was brought to the Area 4 Violent Crimes headquarters and was questioned about the shooting. Cardona testified that, because he was frightened, he told the police that the shot that killed SiFuentes had been fired from Baez's car. At approximately 9 a.m. on the morning of December 30, 1985, Cardona spoke with the police again after they told him that another witness had implicated him in the shooting.

Cardona stated that he was testifying under a court ordered subpoena and that he had not been involved in gang activity since the shooting of SiFuentes. Cardona stated that in 1984, after having pled guilty to arson of a car, he paid restitution and received a sentence of probation.

In response to the prosecutor's question, Cardona acknowledged that he testified at his own trial on January 5, 1987, that he saw defendant holding a gun in his hand which was sticking out of the window in Cardona's car.

On cross-examination, Cardona denied that he owned a black four-door LTD, and stated that his car was gray and had two doors. Cardona stated that prior to the shooting, he had been in the bar for about 30 minutes, playing pool and drinking four to five beers. Baez left the bar about ten minutes after Cardona and defendant.

When asked about his first conversation with the police, Cardona testified that he told the police that Ascencio was in the front seat of Baez's car and that he did not see anyone in the back seat. Cardona admitted that he lied to the police the first time he talked to them. In that first conversation, Cardona did not say that defendant had shot anyone, and he did not tell the police that he had heard defendant say, "I think I got one." Rather, Cardona told the police that the shots came from Baez's car. When he told the police this, he did not know anything about Ascencio being at the station.

Cardona stated on cross-examination that he heard a shot and felt cold air, but he did not see a gun in defendant's hand after the shot was fired. Cardona did not know what happened to the gun that Baez gave defendant in the bar, and he never saw the gun again after they left the bar. Cardona denied that he saw defendant fire a gun out of his car. Cardona was in the police station all night and slept in a chair during the period between his first conversation on the evening of December 29, 1985, and his second conversation at approximately 9 a.m. on December 30, 1985. Between the two interviews the detectives told him that Ascencio had implicated him by stating that Cardona's car was involved. Thereafter, Cardona told the police that the shot did come from his car. Cardona testified that when he spoke to the police the second time, he was still scared because he was being blamed for being involved in the murder.

Cardona stated that he was tried for SiFuentes' murder and found not guilty. Cardona denied testifying at his own trial that he saw defendant do the shooting. He testified further that he was no longer a member of the Villa Lobo street gang, and he had no allegiance or obligation to the Villa Lobo street gang or to defendant.

On redirect examination, Cardona stated that, at his own trial, he testified that after defendant shot the gun, Cardona turned around and heard defendant say, "I think I got one." Cardona testified that he drove approximately a quarter of a block before defendant made this statement. Cardona did not respond, and he did not see the gun or anyone shot. Cardona also denied knowing whom defendant hadshot. Cardona stated that, at his own trial, he testified that he saw defendant with a gun in his hand after he felt cold air coming from the right front window. Cardona testified at defendant's trial that he was confused when he was asked those questions at his own trial. Cardona acknowledged that at his own trial, he testified that defendant fired a gun twice out of the car window. He also admitted that he gave a written statement on December 31, 1985, in which he said that he saw defendant pull his hand from his side, roll down the window, point the gun toward three individuals in front of the restaurant, and fire once.

Cardona testified that he had hired a lawyer to represent him so that he would not have to testify at defendant's trial because he was afraid.

On recross-examination, Cardona testified that at the time he gave the written statement, he was confused, and he knew that some of it was not true. The part of the statement which was not true was that portion in which he indicated that he saw defendant pull out the gun, roll down the window, and point the gun at three people.

Cardona stated that on the night of the shooting, he saw Baez pointing in the other car which was closer to the curb and a little bit behind Cardona's car. Cardona could not tell what Baez was pointing with. Cardona testified that he could not say for sure that the gunshot came from inside his car.

Although the trial court had reserved the ruling on the States' motion in limine until after Cardona testified on direct, this witness completed his testimony and was excused without ...


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