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05/05/94 PEOPLE STATE ILLINOIS v. JOSE OSCAR

May 5, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSE OSCAR SALGADO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 90-CF-835. Honorable Thomas E. Hogan, Judge, Presiding.

As Modified on Denial of Rehearing June 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McLAREN, Woodward, PECCARELLI

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

Jose Oscar Salgado, the defendant, was indicted by a Kane County grand jury for one count of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(1) (now codified, as amended, at 720 5/9-1(a)(1) (West 1992))), and two counts each of attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8-4(a), (c)(1) (now codified, as amended, at 720 ILCS 5/8-4(a), (c)(1) (West 1992))), and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), in connection with a gang-related shooting spree in Aurora on June 3, 1990. Following unsuccessful motions by the defendant to have his statements to police and certain identification evidence suppressed, the matter proceeded to a jury trial on April 6, 1992. The defendant was convicted on all counts, and this appeal followed. We now reverse and remand for a new trial.

This case arose from a gun battle in Aurora between rival street gangs, the Latin Kings and the Insane Deuces. The defendant and three codefendants, Jorge Carvajal, Brian Torres and Jose Angel Loera, all members of the Insane Deuces, were charged with the murder of Dennis Evans and the shooting of Kerry Stewart and Michael Banuelos. Evans and Stewart were members of the Latin Kings; Banuelos was not a gang member.

Aurora police officers David Johnston and Scott Wolters testified that they were on patrol about 10 p.m. on June 3, 1990, when they heard gunshots coming from several blocks away in the area of Beach Street between Liberty and Columbia. At Beach Street, they found a chaotic scene, with several persons running and yelling. Evans lay in the street with a gunshot wound to the head. He was taken unconscious to Copley Hospital, where he died the next day. Stewart had a gunshot wound to his ankle, and Banuelos had a gunshot wound in his chest and a collapsed lung. Police recovered 25 9-millimeter shell casings from the scene and one casing from a smaller gun.

Officer William Powell said he interviewed Alex Ramos on Beach Street at 10 the night of the shooting, and Ramos identified three shooters as Corey Torres, Coco Loco and Oscar. In reference to Oscar, Powell said he asked, "Salgado?" to which Ramos responded, "yes." Powell went to the defendant's home at 1:30 a.m. but did not locate him.

Officer Thomas Davis testified that Ramos came to the police station at 11 on the night of the shooting and reported that he was at the scene and saw who did the shooting. Ramos signed a typewritten statement in which he identified four men, including the defendant, as shooters.

Officer Marshall Gauer said that he and Terry Wegman interviewed the defendant about 9:35 the morning after the shooting. Gauer said he obtained a Miranda waiver ( Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) from the defendant and then questioned him about his whereabouts on June 3 from noon onward. The defendant told him that he was at home with his girlfriend from 2 to 6 p.m. that day, and he then went to a friend's house for the remainder of the day. Gauer said he told the defendant that he did not believe him, and the defendant then stated that he and his friend went to a gas station that evening. The defendant claimed he did not learn of the shooting until the following morning when his mother took him to court for an appearance in an unrelated matter.

Gauer then told the defendant that several witnesses had implicated him, and the defendant then said that he called Angel Loera around 8 o'clock on the night of the shooting and that he met Loera and the other codefendants later that night. The defendant denied having a gun that night.

Pursuant to a search warrant, police recovered a silver pistol, a 9-millimeter semiautomatic pistol, and a box of .44-caliber ammunition from Loera's home. No latent fingerprints were found on the guns or ammunition. A firearms identification expert testified that the spent 9-millimeter cartridges found at the shooting scene were fired from the gun recovered from Loera's home.

Kerry Stewart testified for the State that he was with a group of friends in front of a store at Beach and Liberty at 10 p.m. on June 3 when a car came up Beach Street with its headlights off. Stewart said that gang slogans were yelled back and forth, and Stewart joined others in chasing the car down the block. Shots then were fired, and Stewart was wounded. He did not see who fired any of the shots.

Three other occurrence witnesses, Davis Whisenant, Michael Banuelos and Robert Saltijeral, testified that they were together at Liberty and Beach when the shooting occurred. The three denied being gang members. Whisenant and Banuelos could not identify the shooters.

Saltijeral said he saw three men that night and recognized them as the defendant, Angel Loera and Corey Torres. Saltijeral said that at first he did not pay the three any attention and continued walking. When he heard shots, Saltijeral said he turned and saw the defendant, Loera and Torres shooting. Saltijeral denied making any deals to testify. He said he did not talk to the police the night of the shooting, but spoke to them later at the courthouse.

Saltijeral admitted that when he was contacted shortly prior to trial by the defendant's attorney and her investigator, he told them that he could have been mistaken and might not have seen the defendant on the night of the shooting. However, at trial, Saltijeral testified that he was certain that the defendant was one of the shooters. He said that he made the contradictory statement prior to trial because "I didn't want to be mean to you guys [defense attorneyand investigator] and tell you guys to leave. I didn't want to say nothing." On redirect examination, Saltijeral said he lied to the defendant's attorney and investigator "because I didn't want to be hassled."

Alex Ramos, a member of the Latin Kings, testified for the State that he was a friend of one of the victims, Dennis Evans, and he knew that the defendant was a member of the rival Insane Deuces. Ramos testified that he was at the scene of the shooting but did not see the shooters. Ramos admitted that he had talked to Officer Powell shortly after the shooting, but he denied telling Powell that he had seen the shooters or that he gave Powell any names. Ramos said he gave a written statement to Officer Davis, but he claimed that Davis supplied the names of the shooters. Ramos admitted that he signed the police statement in which he identified the defendant as one of the shooters.

Ramos said that Davis showed him four photographs by placing all four in front of him at once. Ramos said he identified the four because he knew the men but that Davis did not ask if they were the shooters. Ramos acknowledged that he testified during a suppression hearing that he had seen four shooters, that he recognized each of them, and that he gave their names to police.

Ramos said that about a week before trial he met with Assistant State's Attorney Cathy Cavins at the Kane County courthouse, at which time he told Cavins that he had not seen anything during the shooting incident. Ramos said that Cavins instructed him to testify that he had seen the shooters and to identify them as Torres, Loera, and the defendant. Ramos said that Cavins offered to pay him $1,000 for the false testimony but that he never was paid.

Cavins testified that she never told Ramos to lie and never offered to pay him for his testimony. She said that Ramos told her he wanted to testify against the defendant because he was a friend of Evans.

The defendant did not testify, but he called five occurrence witnesses. Gerardo Morga, a member of the Latin Kings, said he was at the shooting scene but did not see the defendant there. Marcial Roldan, also a Latin King, testified that he was angered over the shooting and, therefore, told police following the shooting that the defendant was one of the shooters when in fact he could not identify any of the shooters. In rebuttal, the State presented Officer William Powell and police investigator Deborah Porter, who testified that Morga and Roldan had given them statements that implicated the defendant.

Irving Childress, a Latin King, testified that he saw two men shooting at the scene and that neither was the defendant. MichaelWaters, who refused to say whether he was a gang member, testified that he saw ...


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