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04/30/96 PEOPLE STATE ILLINOIS v. FIDEL NINO

April 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FIDEL NINO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 93-CF-5411. Honorable Stephen D. White, Judge Presiding.

Rehearing Denied June 5, 1996. Released for Publication June 5, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice McCUSKEY delivered the opinion of the court: Slater, J., concurs. Presiding Justice Holdridge, concurring in part and dissenting in part:

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

Following a jury trial with eight other defendants, Fidel Nino (the defendant) was convicted of first degree murder (720 ILCS 5/9--l(b)(6)(West 1994)), aggravated arson (720 ILCS 5/20--1.1(a)(l)(West 1994)), and aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(l)(West 1994)). The defendant received concurrent sentences in the Department of Corrections of 75 years, 50 years, and 15 years, respectively.

On appeal, the defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied his statutory right to a speedy trial; (3) the State misled the jury concerning its dealings with a material witness, Victor Aldava (Aldava); (4) the prosecutor improperly commented on his right to remain silent; (5) he was denied a fair trial by the prosecutor's improper closing argument; (6) the prosecutor improperly introduced evidence of other crimes; (7) the trial court improperly relied on inadmissible evidence to give him an extended sentence; and (8) his sentence is grossly disproportionate to those of his co-defendants.

Following our careful review of the record, we determine the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. We also find no violation of the defendant's speedy trial rights. However, we conclude that the State engaged in improper conduct by: (1) misleading the jury regarding its dealings with Aldava; (2) commenting on the defendant's right to remain silent; (3) misleading the jury with improper closing argument; and (4) introducing evidence of other crimes. The cumulative impact of this conduct fundamentally flawed the defendant's trial. As a consequence, the defendant is entitled to a new trial. Because the cause is being remanded for a new trial, we will not address the questions regarding sentencing.

I. Background

On November 21, 1993, several members of the Latin Kings street gang firebombed and shot into a house on the east side of Joliet. Aldava and his bedridden grandmother, Nicolosa Esquivel, were the only people in the house. After the firebombing, Aldava tried unsuccessfully to save his grandmother's life. She died from smoke inhalation.

Danny Martinez testified that on the day of the crimes, several members of the Latin Kings met twice at his house. The defendant and Anthony Montoya held leadership positions in the Joliet area street gang. The first meeting occurred at approximately 1 p.m. Danny's live-in girlfriend, Angelina Borrego (Angelina) testified that, at Danny's request, she was out of the house before the meeting started. However, before she left, Angelina saw the defendant and Montoya arrive at the house.

Danny testified that at the meeting, Michael Martinez (Michael) sold the street gang a stolen nine millimeter handgun. Danny testified that Juan Woodward, Mario and Freddie Gonzalez, and Jessie Pena told the defendant they had been subjected to an armed attack by Jose Aldava, a rival Vice Lords gang member who lived with his brother, Victor.

Following this revelation, the defendant, Montoya, and Danny (a "staff member" of the Latin King's leadership) held a small meeting to decide what to do about Jose Aldava. The defendant then told Woodward, the Gonzalezes, and Pena "to burn down" the Aldava residence. Before the meeting adjourned, the defendant and Montoya instructed all of the gang members to return to Danny's house later that evening for another meeting.

Danny testified that at approximately 5 p.m., various Latin Kings began arriving at his home. Angelina was present, but went into a bedroom before the meeting began and did not see the gang members arrive. Danny said that he showed Woodward how to use the nine millimeter handgun and gave a shotgun to Freddie Gonzalez. The defendant instructed a group of Latin Kings to attract the police to a nearby street by throwing rocks at cars. Danny helped construct firebombs out of 40-ounce beer bottles, rags, and gasoline. Pena and Mario Gonzalez were told to break the window of the Aldava residence to allow the entry of the firebombs. After the second meeting, Angelina testified that Danny asked her if she wanted to go to a Pizza Hut with the defendant and Montoya. She refused and saw the defendant and Montoya leave the meeting with their girlfriends.

Danny testified that after the others left the meeting, he heard gunshots. He identified the sound of the shots as coming from a nine millimeter handgun. The Latin Kings who were involved in the firebombing returned to Danny's house. At his home, Danny took the nine millimeter handgun and the shotgun from the gang members. Danny and Angelina then ate dinner.

Aldava testified that he was a member of the Two-Sixers street gang. On November 21, 1993, at around 6:20 p.m., he was looking out his front bay window while talking on the telephone with his girlfriend. Several Latin Kings walked by his front window and displayed gang signs disrespecting the Gangster Disciples and the Two-Sixers. About five minutes later, the Latin Kings returned. Aldava saw Juan Woodward pull a gun from his waist, and Aldava threw himself down on the floor of the home. He heard four gunshots and glass breaking. Aldava then saw two firebombs come through the front window. As he brushed some fire off his clothing, Aldava saw the Latin Kings running away. Aldava tried to carry his grandmother from her room but was unable to accomplish the task. He then ran next door to get help from his neighbors. Firefighters arrived shortly thereafter.

The jury returned its verdict finding Freddie Gonzalez, Mario Gonzalez, the defendant and Montoya guilty of first degree murder, aggravated arson, and aggravated discharge of a firearm. Eddie Olender and Joe Lopez were found guilty of theft and not guilty of first degree murder. Anthony Morrow, Miguel Orozco and Victor Guzman were found not guilty on all counts. Following sentencing, the defendant filed a timely notice of appeal.

II. Sufficiency of Proof

The defendant initially claims that he was not proven guilty beyond a reasonable doubt of first degree murder, aggravated arson, and aggravated discharge of a firearm. In this regard, the defendant relies primarily on his contention that Danny and Michael were unbelievable accomplice witnesses who received financial rewards and great leniency from the State in exchange for their testimony.

A. Applicable law and standard of review

The evidence shows that after the second meeting at Danny's house, the defendant and Montoya went to Pizza Hut for dinner and were not present at the crime scene or Danny's house during the rest of the evening. As a consequence, the defendant was charged under an accountability theory. Accountability under the law must be established by evidence which shows the defendant: (1) solicited, aided, abetted, agreed, or attempted the offense; (2) participated before or during the offense; and (3) had a concurrent, specific intent to promote or facilitate the commission of the offense. 720 ILCS 5/5--2 (West 1992); People v. Houston, 258 Ill. App. 3d 364, 367-68, 629 N.E.2d 774, 778, 196 Ill. Dec. 229 (1994).

In addition, the law of accountability provides that when two or more people participate in a criminal plan, any criminal acts committed by one party in furtherance of the plan are considered to be the acts of all of the people involved. Houston, 258 Ill. App. 3d at 367-68, 629 N.E.2d at 779. Furthermore, presence at the scene of the crime is not a required element of accomplice liability. A person absent from the scene of the crime can be charged as an accomplice if he or she participated in the plan. People v. Feagans, 134 Ill. App. 3d 252, 261, 480 N.E.2d 153, 160, 89 Ill. Dec. 267 (1985).

In judging the sufficiency of the evidence on appeal, the relevant inquiry is not whether we believe the defendant's guilt was established beyond a reasonable doubt. Rather, the issue is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374, 586 N.E.2d 1261, 1266, 166 Ill. Dec. 932 (1992); People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, 87 Ill. Dec. 910 (1985). After reading the record and viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt, based on accountability principles.

B. Aggravated Arson

A person commits the offense of arson when he knowingly uses fire or explosives to damage the real or personal property of another having a value of $150 or more. 720 ILCS 5/20--1 (West 1994). Aggravated arson is arson committed with the knowledge that a person is present in the building burned or where any person suffers great bodily harm or permanent disability or disfigurement as a result of the fire. 720 ILCS 5/20--1.1 (West 1994). The record contains ample evidence from which a reasonable trier of fact could find: (1) the defendant planned and ordered the knowing use of fire to damage the Aldava residence; (2) the property was valued in excess of $150; and (3) great bodily harm occurred as a result of the arson.

Danny and Michael testified concerning the defendant's direct involvement in planning the arson. Angelina testified that she saw the defendant arrive for the first meeting and leave following the second one. Moreover, the State has proved that the defendant's involvement took place before the offenses occurred. Finally, we conclude that based on the above testimony, there was adequate evidence from which a rational trier of fact could find the defendant possessed the requisite specific intent to promote aggravated arson.

C. First degree murder and aggravated discharge of a firearm

Once the State proves that the defendant had the specific intent to promote a crime, the defendant is then responsible for any criminal act which is committed in furtherance of the crime. Houston, 258 Ill. App. 3d at 364, 629 N.E.2d at 779. We determine there is ample evidence in the record to support the jury's finding that the defendant had the specific intent to promote the commission of the offense of aggravated arson. Accordingly, the defendant is legally accountable for the crimes committed in furtherance of the plan. People v. Dukes, 263 Ill. App. 3d 765, 770, 635 N.E.2d 732, 735-36, 200 Ill. Dec. 393 (1994).

D. Accomplice testimony

In urging this court to reverse his convictions, the defendant argues that the State's key witnesses were unbelievable and did not support his conviction. We do not agree. Uncorroborated accomplice testimony can support a conviction if there is sufficient evidence for the trier of fact to find the elements of the offense beyond a reasonable doubt. People v. Holmes, 141 Ill. 2d 204, 242, 565 N.E.2d 950, 967, 152 Ill. Dec. 268 (1990).

The defendant is correct that courts cautiously scrutinize accomplice testimony. Holmes, 141 Ill. 2d at 242, 565 N.E.2d at 967. Nonetheless, the "inherent weaknesses" of accomplice testimony bear on the weight to be given such evidence, as well as the credibility of the witness. These determinations are matters "peculiarly within the province of the trier of fact." Holmes, 141 Ill. 2d at 242, 565 N.E.2d at 967. We will not substitute our judgment for that of the jury on questions concerning the weight of the evidence or the credibility of witnesses. A reviewing court will reverse the trier of fact only when the evidence is so improbable, impossible or unsatisfactory that it raises a reasonable doubt as to the defendant's guilt. People v. Irby, 237 Ill. App. 3d 38, 58, 602 N.E.2d 1349, 1364, 177 Ill. Dec. 177 (1992).

Danny, Michael, and Angelina were heavily impeached at trial by nine different defense attorneys. The jury heard extensive testimony concerning the incentives and financial benefits the State gave these witnesses in return for their testimony. The record clearly shows that Michael and Danny received immunity from prosecution for their involvement in two separate murder cases. Danny and Angelina received rent-free housing, free groceries, and cash payments prior to and during the defendant's trial. The incentives the State gave these witnesses are factors to be considered by the trier of fact and weighed along with all the other evidence. Irby, 237 Ill. App. 3d at 59, 602 N.E.2d at 1365. Despite the heavy impeachment of Danny, Michael, and Angelina, the jury chose to believe their testimony after weighing it along with all the evidence presented during the trial. Following our review, we do not find the evidence to be so improbable, impossible, or unsatisfactory that it raises a reasonable doubt concerning the defendant's guilt.

III. Speedy Trial

This portion of our opinion is nonpublishable under Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994).

[The following material is nonpublishable under Supreme Court Rule 23].

[The preceding material is nonpublishable under Supreme Court Rule 23].

IV. Trial errors

A. Misleading the jury

The defendant argues that the State improperly misled the jury concerning its dealings with Victor Aldava. We agree.

At the time of the defendant's trial, Aldava was in custody charged with residential burglary and arson. If convicted, he faced 4 to 15 years in the Department of Corrections. On the very day that Aldava testified in the defendant's trial, he appeared in court with Assistant State's Attorney Knick, who continued his pending criminal cases. Knick was also a prosecutor in the defendant's case. At the time, the defendant was unaware that Aldava's criminal matters had been continued to a later date. The day after the jury's verdicts were rendered in the defendant's case, Knick appeared in court with Aldava. As a result of plea negotiations, the pending charges against Aldava were dismissed. The State allowed Aldava to plead guilty to burglary and recommended probation. The trial court accepted the negotiated plea and sentenced Aldava to probation.

During his testimony at the defendant's trial, Aldava denied that he had a "deal" with the Will County State's Attorney's office concerning the status and disposition of his pending residential burglary and arson cases. On cross-examination, the ...


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