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In re E.H.

September 01, 1998


The opinion of the court was delivered by: Justice Rakowski delivered the opinion of the court

Appeal from the Circuit Court of Cook County.

No. 95 JD 15057

Honorable Gerald T. Winiecki, Judge Presiding.

On September 17, 1995, respondent's gang confronted another gang at a baseball field near 17th Avenue and Bloomingdale in Melrose Park. Testimony at trial showed that soon after respondent's group began throwing bottles at the other gang, respondent wielded a chrome automatic handgun and began shooting toward the other gang. Steven Finney suffered a gunshot wound to the head, which eventually caused his death.

Following a bench trial, respondent, E.H., a 15 year-old minor, was adjudicated delinquent for committing first-degree murder. From this finding, respondent appeals. We find that:

(1) respondent was proved guilty beyond a reasonable doubt based on clear, uncontradicted, and substantiated accomplice testimony; (2) the testimony of an officer which included nonverbal, nonassertive conduct of respondent's mother was not hearsay; and (3) the State's use of any hearsay inference during closing argument was not considered in the trial court's adjudication and, thus, did not prejudice the respondent.


Jaime Aguilera testified on behalf of the State. Aguilera at first answered "no" to some of the State's initial questions as to whether he saw anything unusual on September 17, 1995, a shooting, or a crime take place. Nonetheless, Aguilera testified that he, respondent, and about 10 other individuals met in Franklin Park and then headed by car to respondent's house located at 2017 North 17th Avenue in Melrose Park. Aguilera testified that after they arrived at respondent's house and exited their cars, some of the individuals said that they were supposed to find some other rival gang. Because the gangs were in some type of fight, they gathered rocks and bottles, and he, respondent, respondent's brother, and the other individuals headed towards a park that was also on 17th Avenue. Upon arriving, the group found members of another gang. Aguilera stated that the other gang began to charge toward them and, in response, his group charged while throwing bottles at them. Aguilera testified that it was at this time he saw respondent pull out a chrome automatic handgun and begin shooting toward the other gang. Aguilera estimated that respondent fired six to seven shots. Aguilera testified that it appeared that respondent was the only individual from either group who had a gun. Aguilera stated that, after the shooting, respondent ran back to his house.

On cross-examination, Aguilera admitted that when he spoke to the police on the day following the shooting, he told them two different stories. Aguilera admitted that he first told the police that he stayed in respondent's house when respondent and respondent's brother left to fight someone and that when they returned they seemed to be in a normal mood. Aguilera admitted that later the same day he told police that he stood by the park as a large group of respondent's friends went to the corner of 17th Avenue and Bloomingdale and that he heard gunshots. He also conceded at trial that he originally claimed that it was respondent's brother who shot the gun. Aguilera acknowledged on cross-examination that the police arrested him in connection with the shooting, that he was brought before a grand jury, that he spent three days in jail, and that he was still in "trouble" for the crime.

Victor Fong and Fernando Hernandez, who were near the location of the shooting, also testified for the State. Fong testified that he saw Steven Finney alive earlier on September 17, 1995. Fong testified that around 6:30 or 7 p.m., before the shooting, he saw respondent, respondent's brother, and Jose Rocha flashing gang signs while driving around in a blue car on Bloomingdale. He also testified that a blue car towed by the police and shown in a State's exhibit matched the one that respondent, respondent's brother, and Rocha were riding in on the day of the shooting. Finally, Fong stated that, while standing about 50 yards away from the baseball field, he heard some screaming followed by gunshots.

Similar to Fong, Hernandez was close to where the shooting occurred. An hour prior to the shooting, Hernandez saw respondent, respondent's brother, and Rocha flashing gang signs while driving in a blue LeSabre near the location of the shooting. He stated that later, while heading toward the baseball field, he saw approximately 15 youths approaching and soon after that he heard shots being fired. Hernandez also identified a car towed by the police and shown in a State's exhibit as being the same blue LeSabre that he saw respondent, respondent's brother, and Rocha riding in before the shooting.

Jose Heredia and Primitivo Fanco also testified for the State. Heredia testified that he, the victim, and other individuals were near 17th Avenue and Bloomingdale when another group came towards them saying "I.D. love" and throwing bottles at them. Heredia testified that it was at this time the victim was shot in the head. Fanco testified that he saw the victim immediately after he was shot at the Little League field in Melrose Park.

The State also called two police officers to testify. Officer Vito Scavo testified that upon the request of Mrs. H., respondent's mother, he met with her at the police station. After they met, they went to 17th Avenue and Fullerton. He testified that, upon arriving, she pointed to a weeded lot. He testified that he searched the area, and after a few minutes, he found a .380-caliber chrome pistol.

Officer Michael Castellan testified that he was called to the Little League field on the 1900 block of 17th Avenue in Melrose Park at approximately 8 p.m. on September 17, 1995. There he discovered approximately five .380-caliber automatic casings in the middle of the street. He also testified that the police towed a blue 1986 Buick LeSabre owned by Jose Rocha.

Finally, the State called respondent's mother to testify. However, she invoked her fifth amendment right not to incriminate herself and did not contribute to the evidence. After the State rested, respondent motioned for a directed verdict, and the court denied the motion. Respondent did not testify and did not call any witnesses.

Upon finding respondent delinquent, the trial court committed respondent to the Illinois Department of Corrections until his twenty-first birthday. Respondent appeals. We have jurisdiction pursuant to Supreme Court Rules 602, 603, and 660(a) (134 Ill. 2d Rs. 602, 603, 660(a)).


A. Whether the Evidence Presented Proved Guilt Beyond a Reasonable Doubt

Respondent's first contention on appeal is that the trial court should not have found him delinquent beyond a reasonable doubt based on the testimony of Aguilera, the alleged accomplice. A reviewing court's function is to determine "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. Steidl, 142 Ill. 2d 204, 226 (1991). "A reviewing court may not substitute its judgment as to the weight of the evidence or the credibility of witnesses, but will reverse only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt as to defendant's guilt." People v. Jackson, 145 Ill. App. 3d 626, 640 (1986). " 'Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal Conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' " People v. Young, 128 Ill. 2d 1, 49 (1989), quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L.Ed. 2d 560, 573-74, 99 S.Ct. 2781, 2786-89 (1979).

"The uncorroborated testimony of an alleged accomplice is sufficient to warrant a conviction, and the fact that the accomplice is a self-confessed criminal and expects leniency does not, of itself, raise a reasonable doubt." Jackson, 145 Ill. App. 3d at 639. However, accomplice testimony is inherently weak because the accomplice is often motivated to testify contrary to the defendant's interests based upon malice, fear, threats, promises or hopes of leniency, or benefits from the prosecution (Young, 128 Ill. 2d at 47-48) and, thus, it should be "accepted only with utmost caution and suspicion and have the absolute conviction of its truth." People v. Williams, 147 Ill. 2d 173, 233 (1991). Nevertheless, corroborated or uncorroborated accomplice testimony is sufficient to convict a defendant of the charged crime where it convinces the trier of fact of the defendant's guilt beyond a reasonable doubt. Williams, 147 Ill. 2d at 233.

Respondent contends that Aguilera's testimony was incredible and, thus, insufficient to support a finding of guilt because Aguilera's initial comments to the police were inconsistent with his trial testimony and because the State might have given him assurances. Respondent also argues that, without corroboration as to who fired the gun, Aguilera's testimony, alone, is insufficient to convict.

Contrary to this argument, Illinois courts have consistently affirmed convictions based on uncorroborated accomplice testimony where the accomplice is found positive and credible, even though the accomplice was not initially forthright with the police and the State promised leniency in exchange for the accomplice's testimony. In Jackson, the appellate court affirmed defendant's murder conviction that was based solely on uncorroborated testimony from an accomplice who was an acknowledged criminal. Jackson, 145 Ill. App. 3d at 640. In Jackson, not only did the accomplice initially deny to police that she knew about defendant's alleged crime, but she also later agreed to testify against defendant in exchange for dismissal of the murder charge against her. Jackson, 145 Ill. App. 3d at 629, 640.

Similarly, in People v. Padilla, 91 Ill. App. 3d 799, 801-02 (1980), the appellate court affirmed defendant's bench trial manslaughter conviction that was based on the uncorroborated testimony of an accomplice who testified in exchange for dismissal of the charges against him. In Padilla, even though other testimony explained the events leading up to and after the shooting, the accomplice's testimony was the only evidence that identified defendant as the person who fired the gun that killed the victim. Padilla, 91 Ill. App. 3d at 800-01; see also People v. Lopez, 242 Ill. App. 3d 160, 167 (1993) (only evidence indicating that defendant sold the drugs was from the accomplice's testimony); see generally People v. Nicholls, 236 Ill. App. 3d 275 (1992); People v. Davis, 132 Ill. App. 3d 199 (1985).

Despite the above precedent, respondent argues that this court should reverse the trial court's adjudication. Respondent relies on two cases, In re D.R.S., 267 Ill. App. 3d 621 (1994), and People v. Wilson, 66 Ill. 2d 346 (1977), where the courts reversed convictions that were based on uncorroborated accomplice testimony. However, we find these cases distinguishable and unpersuasive.

In In re D.R.S., the court reversed respondent's conviction not only because it was premised on uncorroborated accomplice testimony, but also because it found other circumstances that undermined the ...

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