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05/30/97 PEOPLE STATE ILLINOIS v. HECTOR RODRIGUEZ

May 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HECTOR RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94--CF--1628. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication July 1, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Hector Rodriguez, was charged by indictment with two counts of first degree murder (720 ILCS 5/9--1(a)(1), (a) (2) (West 1994)), two counts of armed violence (720 ILCS 5/33A--2 (West 1994)), and two counts of aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994)). The State nol-prossed the armed violence counts and one of the aggravated battery counts. A jury found defendant guilty of first degree murder and aggravated battery with a firearm. The trial court sentenced defendant to concurrent terms of 28 years' imprisonment for each offense. Defendant now appeals his convictions and sentence. We reverse and remand.

On June 3, 1994, Javiar Cancino was shot and killed in front of a church across the street from the People's Market in Waukegan. On June 5, 1994, Arturo Mendez and Alberto Vargas were shot from a passing van while they stood in front of the People's Market. Mendez was killed and Vargas partly paralyzed. On June 6, 1994, defendant was charged as a juvenile with obstruction of justice and unlawful possession of a firearm stemming from the June 5 shooting. On June 10, 1994, the State filed a petition to transfer the matter to the circuit court of Lake County. On June 24, 1994, a tentative plea agreement was presented to the juvenile court. According to the plea, defendant would plead guilty to the unlawful possession of a firearm charge and offer truthful testimony and a recorded statement to be used against others indicted for the shooting. In exchange, the State declined to seek incarceration in the Department of Corrections and agreed to dismiss its transfer petition. On July 11, 1994, defendant entered his plea, and the State recommended that he not be sentenced to the Department of Corrections and released pending sentencing. On August 17, 1994, defendant was indicted with the offenses charged in this case.

Prior to the commencement of trial, the trial court granted the State's motion to join defendant's case with that of A.P., another minor charged in the shooting. The defendants were tried before separate juries.

The trial commenced on September 20, 1994. Jihad Abdel Jaber testified that he is the manager of the People's Market in Waukegan. At approximately 2:30 p.m. on June 5, 1994, Jaber noticed "a whole bunch of people standing outside the door hanging around." One boy came into the store and purchased a can of soda. Shortly thereafter, Jaber heard six gunshots. The boy who had purchased the soda returned to the inside of the store after being shot, fell on the floor, and died. The other victim was outside the store. On cross-examination, Jaber admitted that he did not see the shooting occur.

Dr. Nancy Jones, a forensic pathologist employed as a coroner's physician in Lake County, testified that she performed an autopsy on Arturo Mendez. According to Dr. Jones, Mendez died as a result of a single gunshot to his back. On cross-examination, Dr. Jones stated that the bullet hit Mendez in the middle of his back and travelled upward through his body. As a result of the bullet's path, Dr. Jones opined that Mendez was running, ducking, or leaning forward at the time he was shot.

Dr. Thomas Braniff, an emergency room physician, testified that he treated Alberto Vargas for a gunshot wound on June 5, 1994. Vargas was shot once in his "left back." After entering Vargas' back, the bullet lodged against his spine. As a result of the serious nature of his wound and the danger of paralysis, Vargas was flown by helicopter to a Milwaukee hospital for treatment.

Detective James McCarthy of the Waukegan police department stated that, after investigating the crime scene on June 5, 1994, four bullet casings were recovered from the street in front of the People's Market.

Officer David Deprez of the Waukegan police department testified that at approximately 2 a.m. on June 6, 1994, he and other police officers were with defendant when he told them that he had given a gun involved in the June 5 shooting to his ex-girlfriend. Thereafter, the officers and defendant went into his ex-girlfriend's home and retrieved the gun from underneath her mattress. According to Officer Deprez, defendant told him that he had received the gun from Freddy Zuniga.

William Wilson, a forensic scientist with the Northern Illinois Police Crime Laboratory (the lab), testified that another member of the lab, Robert Wilson, tested the weapon recovered in this case. Robert Wilson concluded that the bullet recovered from Arturo Mendez' body was consistent with having been fired from the recovered weapon, a .22-caliber handgun. Additionally, the cartridges found at the scene of the crime were consistent with having been fired from the same weapon. Based on his expertise, William Wilson testified that bullets with these characteristics could have come from the type of gun recovered in this case, a .22-caliber Jennings semi-automatic pistol.

Alberto Vargas testified that at approximately 2 p.m. on June 5, 1994, he was about to enter the People's Market when he saw a van approach and stop. He was then shot by someone in the van. After he was shot, he could not feel his legs. Today, he has "some pain in [his] stomach and in [his] back." He is able to walk, but it is difficult and he often falls.

Mark Davila testified that on June 5, 1994, he attended a meeting of the Latin Lovers gang. Because he was not a gang member, Davila was not allowed to go into the actual meeting. After the meeting ended, Davila entered Andres Delgado's van with approximately 10 other people. Jose Delgado, Andres' cousin, was in the front passenger seat. Defendant was in the middle seat along with Jesus Zuniga. Freddy Zuniga, David Rodriguez (defendant's brother), and Carlos Arroyo were in the back. A.P. was also in the van. There were three other people in the van, including someone named Isaac.

Davila testified that as they drove through Waukegan, "someone asked for the gun." Carlos Arroyo told Davila where the gun was in the van. Davila then picked it up and passed it to Isaac. According to Davila, Isaac then passed the gun either to A.P. or defendant. At that point, the van stopped. A.P. stood up, waved the gun out the passenger window, and shot twice. The van then turned and defendant "shot the other gun." They then drove off, stopped the van at a different location, and got out. At that point, Davila heard defendant state that "he had hit some of them."

Davila recalled a statement that he had made to Waukegan police officers on the night of June 6, 1994. In that statement, Davila indicated that either Freddy Zuniga or defendant could have been the shooter because both were standing near the van's passenger window. Davila stated that Isaac gave the gun either to Freddy Zuniga or defendant. According to Davila, he included Freddy Zuniga in his initial statement because the police repeatedly told him that "Freddy already admitted to saying that he did it." However, at trial, Davila recanted and said that he and Freddy Zuniga were in the back of the van at the time defendant and A.P. were shooting.

On cross-examination by A.P., Davila admitted that his initial statement to the police was untruthful, despite the presence of his signature and the words "voluntary statement" on it. While he stated that the police did not "give him any trouble," Davila testified that they "yelled" at him and kept him in a room. According to Davila, the police told him to "just fall in line" and give a statement. Davila reiterated that he gave his statement to the Waukegan police after they told him that Freddy Zuniga had already confessed to the shooting. Davila admitted that, in exchange for his truthful testimony in this case, the murder charge against him was reduced to aggravated discharge of a firearm. Therefore, while his statement to the Waukegan police was untruthful, his testimony in court was in fact truthful. Finally, according to Davila, after they left the scene of the crime in the van, defendant said, "I fired all the shots."

Defendant's cross-examination of Davila focused on Freddy Zuniga's alleged friendship with Javiar Cancino, the boy killed across the street from the People's Market on June 3, 1994. Davila stated that Zuniga did not tell him that he was upset by Cancino's death, that he "wanted to get even," or that he "wanted to do some shooting for himself." Davila then reiterated that the police forced him to make his statement on June 6, even though he signed the statement.

Vanessa Vasquez testified that she was in the van involved in the June 5 shooting with approximately 10 other people, including her younger brother Isaac. When she made a statement to the Waukegan police on June 7, 1994, she told them that A.P. "fired off a couple of rounds" from the van. In her statement, she also said that "someone else had a gun *** and then I heard some more shots being fired." However, in her testimony at trial, she stated that only A.P. fired a gun out of the van and that no one else fired any shots. On cross-examination, she admitted that she did not see defendant shoot a gun on June 5, 1994.

Andres Delgado testified that he was the driver of the van involved in the June 5 shooting. He drove the van until it reached the vicinity of the People's Market. He stopped the van and then watched as defendant stood up and began shooting out of the passenger window.

On cross-examination by A.P., Andres stated that defendant was the only individual to fire a gun on June 5. He admitted that in his earlier statement to the Waukegan police he identified Freddy Zuniga as the shooter because the police told him to do so. He further admitted that, in exchange for his testimony, the murder charge against him was dismissed and he pleaded guilty to aggravated discharge of a firearm.

On cross-examination by defendant, Andres reiterated that he implicated Freddy Zuniga in his statement of June 6, 1994. However, that statement was untrue. Finally, Andres stated that when he heard shots being fired, he turned and saw defendant at the passenger window.

Jose Delgado testified that he is Andres' cousin. On June 5, 1994, he was present at a meeting of the Latin Lovers gang. After the meeting ended, he left with his cousin in the van to pick up others. He was seated in the front passenger seat. As the van turned onto the street in front of the People's Market, he observed some members of the Kings gang. He then heard a gunshot and ducked down away from the window. He then looked up and saw defendant shooting out of the open passenger window. Thereafter, they drove away in the van and stopped in a nearby alley. Defendant then told Delgado that "I think I hit him." Jose admitted that on June 6 he told the police that Freddy Zuniga had been the one firing out of the passenger window. He provided that statement because the police had previously shown him Zuniga's confession.

On cross-examination by A.P., Jose reiterated that he saw defendant, and not A.P., shoot a gun out of the van's window. Rather than telling the police the truth on June 6, he told them "what they wanted to hear." As part of his untruthful initial statement, Jose said that "after the first shot I ducked down and [A.P.] was leaning over the top of me and I think he was shooting too." He recanted that statement and stated that he only saw one gun in the van on the day of the shooting. Finally, when he looked up after hearing the first shots, A.P. was in the back of the van.

On cross-examination by defendant, Jose reiterated that his first statement to the police, in which he did not implicate defendant, was not free and voluntary. He stated that the police "put words in [his] mouth" regarding Freddy Zuniga as the shooter. However, his second statement, in which he implicated defendant, was freely and voluntarily made to the authorities.

Jesus Zuniga testified that he attended the Latin Lovers gang meeting on June 5, 1994. After the meeting ended, he left in the van and was being driven home. He was in the back of the van. Zuniga had a .22-caliber gun with him and handed it to defendant as they approached the People's Market. The people in the van then observed some "Kings" on the street in front of the market. At that point, defendant moved up in the van toward the front passenger window. Zuniga then "ducked because [he] pretty much knew what [defendant] was going to do." Zuniga then heard "four or five" gunshots. As the van sped off, Zuniga watched defendant "put that gun away in his pants." Defendant then remarked that "I think I got one of them motherf///--s." Zuniga admitted that, in his statement to the ...


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