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People v. Zurita

April 15, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ISAAC ZURITA, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice Geiger

delivered the opinion of the court:

Following a jury trial, the defendant, Isaac Zurita, was found guilty of attempted murder (720 ILCS 5/8--4(a) (West 1994)), armed violence (720 ILCS 5/33A--2 (West 1994)), aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994)), and aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West 1994)) and sentenced to 16 years' imprisonment. On appeal, the defendant argues that (1) the trial court erred in refusing to admit the prior inconsistent statements of several witnesses as substantive evidence; and (2) the trial court erred in finding that he was not eligible for a "good time" credit in serving his sentence. We reverse and remand for a new trial.

On December 27, 1995, the defendant and Rogelio Montoya were indicted on charges of attempted murder, armed violence, and aggravated battery. An additional charge of aggravated discharge of a firearm was later brought against the defendant and Montoya by information. All of these charges arose out of a shooting incident that took place on December 13, 1995.

On this date, two separate groups of young men were shopping in the Gurnee Mills Shopping Center in Gurnee. One group consisted of Rogelio Montoya, Miguel Arizmendi, Jose Cordova, and the defendant (the Montoya group). The other group consisted of Daniel Mandujano, Jonathon Sharp, Ryan Doyle, and the victim, Jeremy Urbanik (the Urbanik group). Some of the individuals in the Montoya group had allegiances to the "Latin Kings" gang, while some of the individuals in the Urbanik group had allegiances to the rival "Orchestra Albanies" gang. When the two groups encountered each other inside the mall, an argument ensued and the two groups decided to take the matter outside. Once the two groups arrived outside, several gunshots were fired, and the victim was struck in the neck by a .25-caliber bullet.

At the scene of the shooting, Gurnee police officers found spent shell casings in the area of the parking lot where the Montoya group had been standing. One of the casings was from a 9- millimeter cartridge, and two other casings were from .25-caliber cartridges. The police also found holes in a wall and a window of the mall.

The defendant was arrested on December 15, 1995. The police found a round of .25-caliber cartridges in the car that he was driving at the time of his arrest. After waiving his Miranda rights, the defendant gave the police a written statement regarding the incident. The defendant told the police that, while he and his friends were eating inside the mall, one of the individuals in the Urbanik group gave Montoya "dirty looks." The two groups proceeded out of the mall, at which time one of the men in the Urbanik group stated, "I will do you right now, let's go." At this point, the man lifted up his sweater and pulled out a gun.

After the man in the sweater pulled out a gun, Montoya immediately fired several shots at the Urbanik group. The defendant turned and began to run away, firing two shots from a .25-caliber gun over his shoulder as he fled from the Urbanik group. The defendant explained that he fired these shots because he feared that he would be shot. The defendant then got into his vehicle with Miguel Arizmendi and left the scene. The defendant told the police that he later went to the Waukegan lakefront and threw his gun into Lake Michigan.

Gurnee police officers interviewed all four of the men who were part of the Urbanik group. Each of these individuals, including the victim, told the police that Montoya had incited the gang dispute and had fired a weapon. Each of these witnesses identified Montoya from an array of photographs. After taking these witnesses' statements, the police arrested Montoya.

At trial, the State called each of the men in the Urbanik group. Two of these witnesses, Jonathon Sharp and the victim, testified that there was absolutely no doubt that Montoya fired the shot that struck the victim. Moreover, all four witnesses testified that the only person whom they actually saw shoot a gun was Montoya. Three of the witnesses, Mandujano, Doyle, and the victim, testified that, notwithstanding their prior police statements, they now believed that the defendant had been one of the instigators of the incident and that they had seen him standing next to Montoya in a posture suggesting that he had a gun.

Daniel Mandujano testified that he was one of the members of the Urbanik group on the date in question. He testified that the defendant was one of the members of the Montoya group and that he was flashing gang signs and uttering gang slogans. Once the groups went outside the mall, he saw Montoya pull out a gun and fire from about 100 feet away. Mandujano thought that he heard three or four shots but did not remember exactly how many shots were fired. Mandujano did believe that the first shot he heard was deeper than the others. Although he saw the defendant standing next to Montoya when Montoya fired his gun, he never saw the defendant with a gun or saw the defendant take any action that looked as though he was shooting. On cross-examination, Mandujano admitted that, in his signed police statement, he had stated that Montoya was the person responsible for shooting and provoking the incident.

Ryan Doyle testified that he was also one of the members of the Urbanik group on the date in question. He testified that all four people in the Montoya group, including the defendant, were making gang references prior to the shooting. When the groups got outside the mall, he saw both Montoya and the defendant raise their arms in the air, as if they had weapons. Doyle testified that he heard shots fired but was unsure as to the number of shots. He testified that the defendant was not running at the time the shots were fired.

On cross-examination, Doyle was confronted with the signed statement he had given the police. Although Doyle had testified on direct examination that he saw two men with weapons and that the defendant might have fired a gun, he only told the police that Montoya had pulled out a gun and fired at the victim. Doyle also acknowledged that he had told police that Montoya was the individual making the gang signs and references. Additionally, contrary to his trial testimony in which he was unsure how many shots were fired, the defendant told the police that he had heard four or five shots at first and then heard two shots a bit later.

The victim testified that, once the two groups arrived outside, he heard both Montoya and the defendant yelling gang slogans. The victim stated that he then saw Montoya pull something from his waistband and shoot him. He had no doubt that he was shot by a bullet fired by Montoya. Although he believed that the defendant had something in his hand, he could not identify the object as a gun and never saw the defendant fire a shot. The victim was taken to a hospital, and a single bullet was removed from his neck under local anesthesia.

On cross-examination, the victim was confronted with the statements he had given to the police after the incident. The victim acknowledged that he had made these statements. In these statements, the victim told police that Montoya was the individual who had confronted him and his friends. Unlike his testimony at trial, the victim did not tell the police ...


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