Appeal from the Circuit Court of Kane County. No. 96--CF--1476 Honorable Barry E. Puklin, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
Following a bench trial, the defendant, Jose Vasquez, was convicted of first-degree murder. The trial court sentenced him to 50 years in prison. The defendant appeals, raising the following contentions: (1) that he is entitled to a new trial because the State failed to disclose certain evidence in discovery and knowingly presented false testimony during trial; (2) that he is entitled to a new trial on the basis of newly discovered evidence; and (3) that the State failed to prove him guilty beyond a reasonable doubt.
The record reveals that on January 27, 1997, the trial court ordered the State to disclose "any deals or leniency or consideration that is given to Larry Wilkinson or [any] other witness" in the case. In its oral pronouncement on the matter, the trial court ruled that the State should disclose any evidence of "bias, motive, promises, leniency, payments, [or] consideration" that might bear on the credibility of Wilkinson as a witness.
Despite the fact that a mistrial was declared at the first trial in this case, the cause eventually proceeded to a second trial, which commenced on June 9, 1997. At the second trial, the State and the defendant stipulated to the testimony of various witnesses, and the stipulation was then read into the record. That evidence would show that Corey Lesure was a 15-year-old African- American who was shot and killed at 9:57 p.m. on May 15, 1994. His mother would testify that late on the evening of May 15, 1994, the victim left their home to go to the area of West Park Place and East New York Street in Aurora, Illinois, to get money owed to him as a result of a painting job he had done for a woman earlier in the week. He rode his bike to the location and had not been gone long when he was found, around 10 p.m., lying facedown at the southeast corner of 32 West Park Place by Aurora police officer Donka.
Dr. Shaku Teas, a forensic pathologist, would testify that she conducted an autopsy on the remains of the victim. She determined that Corey Lesure died of a gunshot wound to the back. She explained that the bullet entered the right side of the victim's back, traveled across his body, and exited the left shoulder area. The direction of the wound tracked from the back to the front, right to left, and upwards.
Andre Roberts would testify that around 9:50 p.m. on May 15, 1994, he was standing in the center of McCarty Park, which is bordered by West Park Place and East New York Street. At that time, Roberts heard approximately 10 to 12 gunshots that came from the area of East New York Street and Fourth Street. He then observed two Mexican males dressed in black running northbound on Fourth Street after the shots were fired.
Joyckley Stewart would testify that around 9:50 p.m. on the date in question she was in the living room of her residence, located at 32 West Park Place, when she heard 10 to 15 gunshots fired. She then observed two Mexican males run northbound on Fourth Street from East New York Street.
Darryl Bailey would testify that he witnessed the shooting of Corey Lesure. At the time of the shooting, he was seated in the driver's seat of a vehicle parked across the street from 32 West Park Place. He heard about seven or eight gunshots and observed a Mexican male firing a handgun from the west side of a residence located at the northwest corner of Fourth and East New York Streets. The gunman was about 5 feet 7 inches and 170 pounds with short dark hair in a pony tail. He was wearing a black hooded sweatshirt and long red shorts. He then observed the suspect flee north through the yard of the residence located at the northwest corner of Fourth and East New York Streets, and then eastbound toward Fourth Street. Bailey did not see the shooter's face and could not identify him.
Aurora police officer M. Dabney would testify that after the shooting he found nine spent shell casings at 330 East New York Street about six feet from the west side of the building and approximately one third of the way from the front of the building to the rear of the building. The area where Corey was shot at 32 West Park Place could be viewed from the area where the casings were recovered. The streetlight at the intersection of West Park Place and East New York Street was functioning and the area was illuminated when Dabney arrived at the scene at 10:20 p.m. on the night of the shooting.
Aurora police officer Rodriguez would testify that on May 15, 1994, at 10:22 p.m. he was flagged down by an Hispanic male. The man told the officer that he was walking home after visiting his girlfriend and observed a black-haired Mexican male, about 5 feet 6 inches, 170 pounds, wearing red shorts and a dark colored shirt that was possibly a sweatshirt. The Mexican male ran past him northbound on Fourth Street just north of Flagg Street. He then got into a light gray, four-door Buick with a gray vinyl top. That car was carrying three other Mexican males. Officer Rodriguez would further testify that that same evening he had observed the same gray Buick on Claim Street turning northbound on High Street at about 10:05 p.m. At that time, the car was occupied by four Mexican males.
Aurora police sergeant Paul Nelson testified at the defendant's trial that on February 29, 1996, the defendant told him that he had information on three homicide cases that he wanted to share with the police department. The defendant had been an informant for Officer Donka of the Aurora police department. The defendant told Sergeant Nelson that he had information on a case involving a man who was killed across from McCarty Park behind Donino's in Aurora. The defendant drew a map of the area, which was introduced into evidence. As he drew the map, the defendant gave his version of the Corey Lesure murder. However, at the time, Sergeant Nelson did not know what murder the information was related to, and he did not begin to make that determination until after the defendant left.
According to Nelson, the defendant told Nelson that the defendant's cousin, Eddy Guerrera, had killed the victim. The defendant initially told Nelson that he was standing with Guerrera when it happened. He showed Nelson on the map that he and Guerrera were standing on the northwest corner of New York Street and Fourth Street. He also had the defendant highlight with a pink highlighter the area where the defendant and Guerrera were standing. The defendant further indicated that the shots were fired to the southwest corner of New York Street and West Park Place. The defendant marked with a little star the area on the map where the victim was hit. Nelson later had the defendant highlight that star with yellow to indicate where the victim was located. The defendant signed and dated the map.
Nelson further testified that the defendant told him that immediately prior to the shooting he and Guerrera had been visiting friends at the house of Frank Ramirez, which was on the west side of Fourth Street and the third house from New York Street. They were all Latin King gang members. After they got in a car and went to Donino's to get a pop, they were about to turn north onto Fourth Street from New York Street when they noticed a group of Gangster Disciples hanging out on the corner of New York Street and West Park Place. They proceeded to pull into Ramirez's driveway. Guerrera then asked Ramirez if he had "a missile," which was their term for a firearm. The defendant and Guerrera then walked south down Fourth Street to New York Street. They were the only two to do so. They eventually went to the west side of the house on the northwest corner of Fourth Street. From there, they could see the Gangster Disciples hanging out on the corner across the street. The defendant and Guerrera then began "throwing gang signs down" at the Gangster Disciples. At that point, Guerrera pulled out a pistol and began firing at the Gangster Disciples. According to Nelson, the defendant told him that the Gangster Disciples were a rival gang that was "hooding," which meant hanging out in the area. The defendant further told Nelson that, after Guerrera fired the shots, the Gangster Disciples began shooting back at them. The defendant and Guerrera then ran east down the driveway of the house on the northwest corner of New York to Fourth Street and then north on Fourth Street to Ramirez's house.
Nelson further testified that, after he heard this oral statement from the defendant, Nelson wanted to get a typed statement from the defendant. As they started the typed statement, the defendant asked Nelson whether he could get in trouble for this. Nelson responded that there was a possibility that he could and that he would have to advise the State's Attorney's office about the information. It would be the State's Attorney's decision as to whether the defendant would be charged with any offense. Nelson informed the defendant that he would not be charging him with anything that night and that after the interview he would give him a ride home.
The defendant then proceeded to give Nelson a typed statement. That statement was introduced into evidence at the trial. It differed significantly from the defendant's oral statement. In the written statement, the defendant stated that he thought Guerrera was only going to throw gang signs and did not know that Guerrera was going to shoot because "he was the type of person that would shoot at night." The defendant stated that he and Guerrera went walking down the driveway on the north side of the house at the northwest corner of New York and Fourth Streets. According to the defendant, Guerrera walked ahead of him and the defendant remained by the stairs in front of that house. Guerrera walked to the end of the house and was no longer in the defendant's sight. The defendant then heard two shots fired and ran back to Ramirez's house. The defendant then heard more shots. When the defendant reached Ramirez's house, he told Ramirez that the Gangster Disciples were shooting at them, and Ramirez responded, "no [,Guerrera's] shooting at the Gangster Disciples." The defendant then asked Ramirez why he did not tell him that, and Ramirez responded, "my fault." At that point, Guerrera returned to Ramirez's house and the defendant saw the gun barrel sticking out of Guerrera's sweatshirt. Guerrera and Ramirez went inside the house, but the defendant left and went to Jimmy Torres's house and told him what had happened.
Sergeant Nelson further testified that he interviewed Larry Wilkinson on August 1, 1996, and that he gave him a statement about the identity of the person who fired the shots in this case. Wilkinson identified the defendant as the shooter from a photographic lineup. According to Nelson, when Wilkinson pointed at the defendant's photograph, he said "that looks just like the guy," but he could not be absolutely positive because it happened so long ago. When Nelson asked Wilkinson to gauge his certainty on a scale of 1 to 10, Wilkinson responded that he would put his level of certainty at about 4 or 5 but that he "looked just like the guy."
On cross-examination, Sergeant Nelson stated that when the defendant left the police station on February 29, 1996, he was not a suspect. When Wilkinson came to the police station on August 1, 1996, Nelson was not aware that Wilkinson had a pending burglary case in Kane County. Because Wilkinson had come from Iowa to give his statement, Nelson gave him $30 for gas.
On redirect examination, Nelson testified that during his statement on August 1, 1996, Wilkinson told Nelson that he saw two suspects squatting down on the west side of the house when the shots were fired. He said that he only saw one of them shooting, and he described that person as a short, chubby Hispanic male with some facial hair. Nelson asked Wilkinson to identify in the photo lineup the short, chubby person he had seen firing the weapon.
Aurora police officer Marshal Eugene Gauer testified that he interviewed Larry Wilkinson on June 9, 1994. Wilkinson was a confidential informant. Gauer noted that he incorrectly placed the statement that he took from Wilkinson on June 9, 1994, in the file on the Corey Lesure murder case but that the statement actually related to a homicide that occurred on May 11, 1994, case file No. 94-8901. Gauer further noted that he later determined that the statement did not relate to the May 11 case (No. 94-8901) either, because the information in that file as to the location of the shooter was different from the information in the statement given by Wilkinson and an arrest had been made in that May 11 case. Gauer testified that he brought Wilkinson in to view a live lineup on September 3, 1996. After Wilkinson went through the lineup once, Gauer asked Wilkinson if he wanted to see anyone a second time. Wilkinson asked to see the defendant, who was number five in the lineup, a second time and requested that the defendant be asked to tilt his head back with his chin upward. After the lineup was over, Wilkinson stated that he did not "see him in there" but that he was 90% sure number five was the man he had seen shooting on May 15, 1994, and that he was "a little thinner" now. After the lineup, Gauer and Wilkinson stopped to eat and Wilkinson told Gauer at that time that he was 90% sure that number five was the shooter, but he did not want to identify him unless he was 100% sure. After they finished eating, Gauer bought Wilkinson a hotel room for the night because he had traveled from Iowa. The next day, Gauer bought Wilkinson a bus ticket back to Iowa.
Officer Gauer further testified that he did not consider Wilkinson to be a paid informant and that he had not given Wilkinson any money to come forward with any of the information that Wilkinson provided in connection with the case. Gauer did acknowledge that, in addition to a hotel room, a bus ticket, and a meal after the lineup, the police department paid for Wilkinson's moving expenses to Iowa. Gauer stated that he did not know if Wilkinson had any ...