Appeal from the Circuit Court of Kane County. No. 90--CF--832 Honorable Thomas E. Hogan, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Modified Upon Denial of Rehearing
The defendant, Brian C. Torres, appeals from the October 15, 1997, order of the circuit court of Kane County denying his post-conviction petition for a new trial. The defendant filed his petition after he was convicted by a jury of one count of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(1)) and two counts each of attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8--4, 9--1(a)(1)) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2). The trial court subsequently vacated the armed violence convictions, and the defendant was sentenced to concurrent terms of 50 years for the murder conviction and 30 years for the attempted murder convictions. We affirmed the defendant's convictions on direct appeal. See People v. Carvajal, 241 Ill. App. 3d 886 (1993). In the instant appeal, the defendant contends that the trial court erred in denying his post-conviction petition, as he presented newly discovered evidence that indicated his possible innocence.
As our Disposition of the prior appeal (Carvajal, 241 Ill. App. 3d 886) summarizes the circumstances of the defendant's conviction and sentence, we will provide only a summary of the relevant facts. The charges in this case arose out of a gang-related shooting spree that took place in Aurora on June 3, 1990, between members of the Insane Deuces gang and the Latin Kings gang. As a result of the shooting, Dennis Evans died and Kerry Stewart and Michael Banuelos were injured. On June 12, 1990, the defendant and three other members (Jorge Carvajal, Jose Salgado, and Jose Angel Loera) of the Insane Deuces gang were charged with the murder of Evans and the shooting of Stewart and Banuelos. The defendant was tried with Loera and Carvajal, while Salgado was tried separately on a later date.
At the defendant's trial, Alex Ramos, a member of the Latin Kings, testified on behalf of the State. Ramos testified that, at the time of the shooting and at the time of the trial, his gang and the Insane Deuces were at "war." He further testified that on the night in question he saw Loera, Salgado, and the defendant at a nearby intersection holding guns. In addition, Carvajal appeared between two nearby houses. All four individuals then opened fire on the people in the street. Ramos dropped to the ground and crawled to the fence. After about 10 seconds, the gunshots ended, and Ramos saw that Evans had been shot. When the police arrived, Ramos identified Salgado, Loera, and the defendant as the assailants.
Michael Waters, another Latin King gang member, testified that he saw three shooters on the night in question. When Waters dropped to the ground, he recognized one of the shooters as the defendant. Waters indicated that he did not want to testify in court. He explained that, on the night in question, an officer overheard him identifying the shooters. The officer then grabbed him and made him give this information.
Fidel Elizondo, a former Latin King gang member, testified that he did not speak with the police regarding the shooting until after his October 1990 conviction for burglary. He admitted that, when he first spoke to the police, he lied and told them that he could not identify the shooters. He subsequently identified the defendant as one of the shooters. Elizondo testified that, after he spoke with the police, he was placed in a witness protection program. On cross-examination, he testified as follows:
"Q. Did they make you any kind of an offer to tell you that they would cut your sentence down or give you any deal if you came in here and testified against [defendant]?"
"A. No. I was already sentenced when I gave my statement."
Frank Ramirez, another Latin King gang member, testified that he saw the defendant firing shots while standing under a streetlight on the night in question. Ramirez did not give this information to the police that night. On the morning after the incident, he went to traffic court and saw the defendant in the building. He then told the police that the defendant was involved in the shooting. When he first spoke to the police, he told them that there were four assailants, but he testified that he had lied and that there were only two assailants.
Robert Saltijeral, another occurrence witness, testified that he saw the defendant and Loera walking up to a streetlight. However, he did not see who fired the shots. He admitted that, on the night in question, he told the police that he did not see what happened.
Officer Scott Wolters of the Aurora police department testified that, when he searched Loera's house, he found two pistols, some gun magazines, and a plaque with gang graffiti. A firearms expert testified that nine spent cartridge casings recovered from the scene of the crime were fired from one of the guns recovered from Loera's home.
The defendant presented the testimony of his mother, brother, and sister-in-law. These relatives provided an alibi for the defendant from about noon on the ...