APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SHELVIN SINGER, JUDGE PRESIDING.
Released for Publication April 13, 1995.
The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Tully, J., concur.
The opinion of the court was delivered by: Rizzi
JUSTICE RIZZI delivered the opinion of the court:
Defendant, Humberto Medrano, was found guilty of attempt to commit first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8-4, 9-1), and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2), and sentenced to 24 years imprisonment for the attempted murder. We affirm.
The issues for review in this case are (1) whether defendant was denied effective assistance of counsel; (2) whether the trial court erred when it allowed the victim to invoke his fifth amendment privilege against self-incrimination; (3) whether defendant's confession relating to his underlying motive for attempted murder should have been admitted into evidence; (4) whether defendant was proven guilty of attempt to commit first degree murder beyond a reasonable doubt; (5) whether the prosecutor's closing arguments deprived defendant of a fair trial; (6) whether defendant's attempt to commit first degree murder conviction may stand; and (7) whether defendant's 24-year sentence was excessive.
Defendant was charged with attempt to commit first degree murder, armed violence and aggravated battery of Peter Quiroz on August 22, 1989. Defendant was tried on a theory of accountability because defendant was the driver of a vehicle from which shots were fired from the passenger side, in a "drive-by" shooting involving rivalgangs. Defendant was alleged to have belonged to the Latin Kings gang, while the victim was alleged to have belonged to the Satan Disciples gang.
The State's case-in-chief consisted of testimony from civilian witnesses, police officers and a statement made by defendant. The victim, Peter Quiroz, did not testify. Quiroz refused to testify and invoked the fifth amendment privilege against self-incrimination on the grounds that testimony of his gang affiliation in the present case would incriminate him in regards to a pending murder charge, in an unrelated case, also involving gang activity.
Cynthia Ochoa testified that on the night of August 22, 1989, she was visiting her friends, Peter Quiroz and Christopher and Jerry Mendoza, who lived at 28th and Komensky Avenue, in Chicago, Illinois. She testified that Quiroz and Christopher Mendoza belonged to the Satan Disciples gang. Ochoa testified that she left the Mendoza house around 10 p.m. and went outside on the curb where she talked to Quiroz, Jerry Mendoza and another person unknown to her. Ochoa further testified that she was leaning against a car with her back to the street, during the course of this conversation, while Quiroz was standing next to her, Jerry Mendoza was standing in front of her, and the other person was standing to her left side facing sideways. Ochoa testified that at that time, she saw a beige buick drive by twice, headed southbound on Komensky. She further testified that the car came down the street a third time and slowed down whereupon Jerry Mendoza pushed her to the ground. Ochoa stated that she then heard shooting and felt a bullet go past her head. After hearing the sound of crashing cars, she observed Quiroz standing across the street holding his right shoulder. Jerry and Christopher Mendoza corroborated Ochoa's testimony. Christopher Mendoza further testified that he saw the defendant, who he knew by the name of "Bird," run from the driver's side of the vehicle.
It was stipulated that Dr. Huang, a physician at Mount Sinai Hospital, would testify, if called, that he examined Peter Quiroz on August 22, 1989, and found a four millimeter gunshot wound in Quiroz's chest on the right posterior side, a few inches away from the armpit. It was further stipulated that Dr. Hechet, a radiologist at Mount Sinai Hospital, would testify that X-rays of Quiroz performed on August 22, 1989, revealed a large bullet fragment on the victim's right hemeral neck with multiple adjacent fragments.
Chicago Police Officer Thomas Mazursky, an expert witness on gangs, explained that there are two factions of street gangs; the "People" and the "Folks." Officer Mazursky further explained that there are numerous gangs in these two alliances. The Folks, led bythe Disciples, use a six point star as their coat-of-arms and the People, who are led by the Vice-Lords use a five point star. Officer Mazursky stated that the gangs use their respective consortium star symbols to mark the borders of their gang's territory. The two factions of People and Folks were at war with each other around the date of the shooting. On June 25, 1989, around 11:30 p.m., Officer Mazursky saw defendant driving in the vicinity of 3101 West 26th Street and later he saw the same car in Latin Kings (People) territory after it had been burned.
Violent crimes Detective Eugene Simpson testified that on August 25, 1989, he and his partner interviewed defendant at the 10th District police station, after advising him of his Miranda rights. Later, Assistant State's Attorney Mary Margaret Brosnahan read defendant his Miranda rights again and recorded his statement. After a trial, the jury found defendant guilty of attempt to commit first degree murder and armed violence whereupon he was sentenced to 24 years for attempted murder. Defendant appeals his convictions and his sentence.
First, defendant contends that he was denied effective assistance of counsel when defense counsel (1) failed to file a motion to quash arrest and suppress evidence on the proper basis; (2) failed to tender a "mere presence" instruction to the jury; and (3) failed to object to Officer Mazursky's testimony on the proper grounds.
The requisite standard of quality for an attorney's advocacy is that of reasonably effective assistance pursuant to prevailing professional norms. Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064-65. In order for a defendant to prove that he received assistance from his attorney that was so ineffective as to merit the reversal of his conviction, the defendant must show that his counsel made errors so grave and that his performance was so deficient, that he did not function in a manner commensurate with the sixth amendment standard for advocacy, and that these deficiencies deprived him of a fair trial with a reliable result. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. In order for a defendant to establish that his attorney's deficiencies deprived him of a fair trial, the defendant must overcome the strong presumption that counsel's complained of action or inaction was merely trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. Even if a defendant establishes that his counsel's performance was materially deficient, he must still demonstrate that he was prejudiced by defense counsel's error. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 698, 104 S. Ct. at 2064-65.
In the present case, defendant received effective assistance of counsel. Although on appeal defendant argues that trial counsel should have moved to quash his arrest and suppress evidence on the basis of illegal arrest, defendant has failed to overcome the strong presumption that not filing the motion constituted trial counsel's sound trial strategy. The record shows that trial counsel did in fact file a pre-trial motion to suppress defendant's statement on the basis of coercion. Trial counsel, however, later withdrew the motion and attempted to raise the issue of coercion before the jury. An attorney's decision whether or not to move to suppress evidence is one involving trial strategy and therefore outside the scope of review for purposes of establishing incompetency of counsel. People v. Martin (1992), 236 Ill. App. 3d 112, 121, 603 N.E.2d 603, 609, 177 Ill. Dec. 533. The fact that the strategy of filing a motion to suppress was unsuccessful for defendant in the present case is not proof of his attorney's incompetence. People v. Conley (1983), 118 Ill. App. 3d 122, 131, 454 N.E.2d 1107, 1115, 73 Ill. Dec. 858.
In addition, the trial court's rejection of defendant's "mere presence" instruction was not a result of defense counsel's incompetence. Defendant argues that "it was prejudicial error for counsel not to have tendered a mere presence instruction in light of the evidence." The record, however, shows that counsel did tender a "mere presence" instruction, but the trial court rejected the instruction and precluded it from ...