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11/14/96 PEOPLE STATE ILLINOIS v. DANNY SPAIN AND

November 14, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANNY SPAIN AND EDUARDO MORONES, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Patrick Grossi, Judge Presiding.

Released for Publication December 22, 1996. As Corrected May 29, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Defendants, Danny Spain and Eduardo Morones, were tried together in a joint jury trial. Each was found guilty of (a) first-degree murder on an accountability theory and (b) conspiracy to commit murder. Spain was sentenced to 35 years in jail for first-degree murder and Morones was sentenced to 25 years in jail for first-degree murder. The trial court vacated the conspiracy convictions. Spain appeals and argues: (1) the trial court erred when it denied his motion to sever his trial from that of codefendant Morones; (2) the trial court made numerous incorrect evidentiary rulings; (3) the trial court erred when it allowed the attorney for witness Douglas Fuit to assert the attorney-client privilege when Spain questioned him about conversations he had with Fuit; (4) the trial court erred by denying his tendered instruction that described his theory of the case and stated the prosecution had to disprove his theory of the case beyond a reasonable doubt; (5) the trial court erred when it sua sponte gave Illinois Pattern Jury Instructions, Criminal, No. 5.06 (2d ed. 1981); (6) he was denied a fair trial when the State made improper comments during closing argument; and (7) he was denied due process when the State failed to inform him of criminal contempt proceedings against witness Maribel Martinez. Morones appeals and argues: (1) the trial court erred by denying his motion to sever his trial from that of codefendant Spain; (2) the trial court erred by admitting the videotaped evidence deposition of witness Nancy Shallon; (3) he was denied due process when the State failed to correct the false testimony of witness Juan Moreno that the State had not promised him anything in return for his testimony; and (4) he was denied a fair trial when the State, during closing argument, equated his membership in a gang with his accountability for the murder. We reverse and remand for separate trials for defendants Spain and Morones.

At trial, the jury heard testimony regarding three gangs: the "Party Players," the "Two-Six" and a rival of those two gangs, the "Saints." The jury heard that Danny Spain, Doug Fuit and Carlos Rasso were "Two-Sixers" and Eduardo Morones and Roderigo Gonzalez were "Party Players." The jury learned that Rasso and Gonzalez were the "shooters" and that Fuit was an alleged eyewitness. Only Spain and Morones were on trial on the theory of accountability, specifically, Morones carried a rifle for Gonzalez and Spain drove the car for Rasso.

At trial, the jury heard testimony that on the evening of September 16, 1988, members of the Two-Six and the Party Players decided to kill a member of a rival gang, the Saints. Pursuant to that plan, Two-Sixer Danny Spain drove fellow Two-Sixers Doug Fuit and Carlos Rasso to Saints territory at 46th and Honore.

At the same time, Party Players Eduardo Morones and Roderigo Gonzalez walked to Saints territory at 4608 South Honore to provide help for the Two-Sixers. Morones carried a rifle and handed it to Gonzalez when they arrived. Two-Sixers Spain and Rasso drove up, and Rasso shot in the direction of the Saint. Party-Player Gonzalez then fired the rifle in the same direction. None of the shots hit the Saint. Instead, a shot hit and killed Ida Garcia, an innocent bystander, who had been waiting on the corner for her brother.

The jury found defendants Spain and Morones legally accountable for the death of the victim and convicted them of first-degree murder. Defendants appealed.

Both defendants contend the trial court erred by failing to sever their trials. Because the issue of severance is dispositive for both defendants, we address that issue first as it specifically applies to each defendant and then address their other individual claims of error.

Spain's Motion for Severance

Spain contends the trial court erred by failing to grant his oral motion for severance after trial began. Spain did not make a pretrial motion for severance. Spain moved for severance after trial began when the State sought to admit a statement from Morones that referred to Two-Six involvement in the murder. Although generally a defendant must move for severance prior to trial, demonstrating how a joint trial will prejudice him ( People v. Peterson, 273 Ill. App. 3d 412, 426, 210 Ill. Dec. 276, 652 N.E.2d 1252 (1995)), the trial court has a continuing duty at all stages of trial to grant severance if prejudice appears. People v. Blount, 220 Ill. App. 3d 732, 740, 163 Ill. Dec. 40, 580 N.E.2d 1381 (1991). Spain's motion alerted the trial judge to the potential prejudice of jointly trying both defendants. Accordingly, Spain has not waived this issue, despite the State's contention to the contrary, and we consider his claim of error.

Defendants jointly indicted are to be jointly tried unless fairness to one of them requires a separate trial to avoid prejudice. People v. Davis, 254 Ill. App. 3d 651, 661, 193 Ill. Dec. 636, 626 N.E.2d 1187 (1993). One type of prejudice occurs when a codefendant has made hearsay admissions implicating defendant. People v. Daugherty, 102 Ill. 2d 533, 541, 82 Ill. Dec. 315, 468 N.E.2d 969 (1984). Defendant is denied his constitutional right of confrontation if the codefendant's hearsay admission is admitted against the defendant and the defendant is unable to cross-examine the codefendant because the latter does not testify. Daugherty, 102 Ill. 2d at 541. In such a case, the trial court must choose between severance, nonuse of the admission, or redaction to eliminate all reference to the implicated defendant. Blount, 220 Ill. App. 3d at 738.

A second type of prejudice occurs when codefendants' defenses are so antagonistic to each other that severance is imperative to assure a fair trial. People v. Braune, 363 Ill. 551, 2 N.E.2d 839 (1936), is the classic example of antagonistic defenses. There, each defendant was "protesting his innocence and condemning the other." "The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other." Braune, 363 Ill. at 555, 557.

Spain alleges both forms of prejudice. First, he argues the trial court erred by admitting Morones' statement. In his statement, Morones said that on the night of the murder Morones heard the Two-Sixers were going to pull a "hit" on the Saints and needed backup, that Morones and Gonzalez walked to 46th and Honore, where they saw Two-Six gang members drive by, and that Morones heard shots and Gonzalez fired a series of shots. Spain contends Morones statement implicated him in the murder, that Spain could not cross-examine because Morones did not testify and, therefore, the trial court should have severed the trial. We disagree. Morones statement does not mention Spain by name, nor does it say or imply Spain was aware of the plan to pull a "hit" on the Saints or that he was present at the time of the shooting. In short, Morones' statement does not implicate Spain for the murder, and it cannot be a basis for severance.

Spain's next argument for severance is that Morones' defense was antagonistic to him. The State disagrees. The State contends Morones' only theory at trial, that merely carrying the rifle for Gonzalez did not make Morones accountable for murder, did not implicate Spain, who raised an alibi defense, contending he was not present at the scene of the murder.

However, Morones developed two theories: (1) even if Gonzalez shot the victim, Morones was not accountable for that conduct; and (2) there was no rifleman or Party Player involved in the crime, so the murder resulted solely from the handgun shot from the car driven by Spain. It is the second theory by Morones which met the Braune test, by Morones protesting his innocence and condemning Spain. The following testimony illustrates:

Morones Protesting His Innocence

(a) Morones elicited testimony from Doctor Nancy Jones, the forensic pathologist who performed the autopsy on the victim, that a handgun, rather than a rifle, caused the mortal wound; (b) elicited cross-examination testimony from Assistant State's Attorney Pulia that Spain did not mention Morones or Gonzalez in his confession, nor did Spain state that the "hit" on the Saints was made jointly with the Party Players; (c) elicited cross-examination testimony from eyewitness Evette Matos that she did not see Morones or anyone else with a rifle on the night of the shooting; and, (d) elicited cross-examination testimony from Fuit that he did not see Morones or a rifleman at the time of the shooting.

Morones Condemning Spain

(a) After Danny Spain testified that police physically coerced him into making a false confession, Morones elicited cross-examination testimony from Spain that Spain never told assistant State's Attorney Pulia that the police had hit him or that his confession was false; further, Morones elicited testimony from Spain that Spain told Pulia the police officers had been "nice" to him, and Spain also admitted he was not drunk or under the influence of a controlled substance when he signed the confession; (b) after Spain's mother testified Ronnie Spain never allowed his brother Danny Spain to drive his car, Morones elicited an admission from her that she was not always present when Ronnie and Danny used the car; (c) during opening statement, Morones stated he "didn't have a grudge against anybody from a rival gang," and during closing argument, Morones asked the jury to remember who "had the grudge against the Saints"; and, (d) testimony established the Two-Sixers wanted to kill a member of the Saints in retaliation for the Saints' killing of a Two-Six member.

The above examples demonstrate that Morones protested his innocence and implicated Spain. Therefore, Morones' defense was antagonistic to Spain and the trial court erred ...


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