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People v. Cruzado

September 08, 1998


Hartman, J., Hourihane, P.j., and Hoffman, J., concur.

The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County.

Honorable Loretta Hall Morgan, judge Presiding.

Following a jury trial, defendant Eliezer Cruzado *fn1 was found guilty of first-degree murder and sentenced to a 28-year prison term. He appeals, raising as issues whether he was denied his right to a fair trial where (1) he was precluded from presenting witnesses; (2) the circuit court prohibited him from presenting evidence of his mental capacity to support his claim of self-defense; (3) the State failed to disclose to him a prior conviction of a witness until after trial; and (4) the State presented testimony of a gang expert.

On September 17, 1993, 17-year-old Avilio Lopez died from a gunshot wound to the abdomen. Several weeks later, the 15-year-old defendant was questioned at the police station, where he gave a statement admitting that he shot Lopez. Prior to trial, defendant's motions to quash his arrest and suppress his statement were denied.

At a hearing on defendant's second amended motion to suppress his statement, Assistant State's Attorney (ASA) Howard Weisman testified that he advised defendant of his Miranda rights and interviewed him in the presence of Youth Officer Donald O'Neill and Detective Reynaldo Guevara. Defendant agreed to have his statement recorded by a court reporter, a transcript of which he read, corrected, and signed. Defendant was responsive to questions and informed ASA Weisman that he could read and write. No threats or false promises were made to defendant in exchange for his confession, nor was he confused, scared, or worn down. Detective Guevara's testimony was substantially similar to that given by ASA Weisman.

Defendant's mother also testified at that hearing, but stated that defendant could not read or write, take public transportation due to his inability to recall the route numbers, or write his own name. She admitted that she had no problems conversing with her son and that one of his problems with school was his absenteeism. Defendant testified that recently he read a third-grade book and that his reading ability was better at the time of giving testimony than in October 1993. On the night of the arrest, no one advised him of his Miranda rights. Further, he was told that he would be able to see his family again if he agreed to make a statement. Defendant was afraid because Detective Guevara informed him that he would spend the rest of his life in jail unless he did what he was told. He recognized his name on each page of the confession and admitted signing each page. He denied reading the statement out loud at the police station because he could "hardly read," but admitted reading it to himself, comprehending only some of the words. He understood only half of what ASA Weisman said to him.

Ruling that defendant was advised of and comprehended his Miranda rights, the circuit court found that he was "streetwise" and that there was no evidence to suggest that he did not understand the situation in which he found himself. Defendant had received advice of his Miranda rights upon his three previous arrests, indicating that he was well aware of his predicament. The court recognized the testimony of Dr. Diane K. Strufe, a psychologist employed by the Department of Corrections, establishing that the evaluations by other doctors essentially were useless because there was no hard data or evidence in any report prepared by them to substantiate their Conclusions. The case proceeded to trial.

The following trial evidence was adduced. Lopez's friend, Javier Claudio, testified that he and Lopez were walking toward Duk's restaurant at Fullerton and Kimball on September 17, 1993, at 11:30 p.m. One-half block away from the restaurant, they encountered a group of Imperial Gangsters. Claudio flashed the group the sign of his gang, Orchestra Albany. At Duk's, they saw an individual nicknamed "Roach," who was a member of the Imperial Gangsters, although formerly an Orchestra Albany gang member. As Claudio and Lopez continued walking through the restaurant's parking lot, Roach made a comment to Lopez and then punched him in the face. A fist fight ensued near the door of the restaurant. Claudio heard a 12 or 13-year-old individual scream, "get the gun." With a gun in his right hand someone, later identified as defendant, exited Duk's and shot twice at Lopez, who then fell to the ground holding his stomach.

Diane Shalla and Tomika Vallo, both employed as waitresses at Duk's, arrived together to begin their shift. They noticed the fight, heard two gunshots, and turned to see defendant standing in the doorway of Duk's holding a gun and pointing it at Lopez. Clutching his stomach, Lopez fell to the ground. When Lopez was shot, he had nothing in his hands, his arms were at his sides, and he did not advance toward defendant. The women then saw defendant flee from the parking lot in a car.

An autopsy revealed that the bullet entered on the left side of Lopez's abdomen, perforated his small intestine, contused his large bowel and colon, went through a major blood vessel, and lodged in his sacroiliac. In the medical examiner's opinion, the shooter had to be more than two feet away from Lopez, there being no evidence of close-range firing.

Two or three days later, Claudio identified defendant from photographs as the shooter. A few weeks later, Shalla and Vallo identified defendant in a police line-up as Lopez's killer.

Gang crimes specialist Officer George Figueroa testified that during his 15 years in this job, his duties included interacting with the Imperial Gangsters gang to identify members and its hierarchy. In September 1993, the Imperial Gangsters and Orchestra Albany gangs were aligned under the faction labeled "Folks," but were experiencing friction due to disagreements over territory and narcotics sales. Some aspects of gang culture he revealed included: the gang is made up of leaders and soldiers; soldiers are required to take orders from leaders; "violations" occur, ranging from suspension to death, if a member loses drugs, informs police, or does not aid another member; and behavior is encouraged that enhances a gang's reputation, such as killing a rival gang member.

At the close of the State's case, defendant's motion for a mistrial based upon the admission of evidence pertaining to gang affiliation was denied. Defendant's motion to have this evidence stricken was denied as well.

Defendant then testified in his own defense. On the evening of September 17, 1993, he was looking for his sister who, he learned, might be at Duk's. On his way there, he encountered fellow gang member, Miguel Cruz, who handed him a gun with instructions to give it to "Flip," the Imperial Gangsters chief. He took the gun in order to avoid the "violation" of being beat up by the gang.

Entering Duk's, defendant, from inside the restaurant, observed Roach and Lopez fighting. Defendant later went outside "to see what was going on." He was not required to aid Roach. Roach fell to the ground and Lopez turned and began walking toward defendant. Lopez was "reaching in his back and in his pocket." Fearing that Lopez had a gun or a knife, defendant pulled the gun out of his pocket, waited 30 seconds, but Lopez kept walking in his direction so defendant fired the gun.

Defendant knew of Lopez's reputation for violence: one year before this incident, defendant watched Lopez punch and kick a man in the face, who declined to buy Lopez a beer.

The jury found defendant guilty. Defendant's post-trial motions and new trial motion were denied and he was ...

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