Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois Nos. 98--CF--678 & 98--CF--315 Honorable Daniel W. Gould, Judge Presiding
The opinion of the court was delivered by: Presiding Justice Homer
On August 21, 1998, the defendant, Jose Mendez, pled guilty to aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1998)) in case No. 98--CF--315. Pursuant to a fully negotiated agreement with the State, the 17-year-old defendant was sentenced to 24 months' probation and 45 weekends in the county jail. Two months later, he was charged with attempted murder and aggravated discharge of a firearm in case No.98--CF--678. As a consequence of these charges, the State filed a petition to revoke probation in No. 98--CF--315.
The causes proceeded to a joint jury trial and probation revocation hearing. A jury found the defendant guilty of aggravated discharge of a firearm and acquitted him of the attempted murder charge. The court contemporaneously found that the defendant had violated his probation. The defendant was subsequently sentenced to 20 years' imprisonment in No. 98--CF--678, and he was resentenced to a concurrent 15-year prison term in No. 98--CF--315. In this appeal, the defendant contends that (1) he was deprived of his right to due process by the court's use of closed circuit television at his arraignment and upon the return of the jury's verdict; (2) he was denied a fair trial by the prosecutor's comments during closing argument; and (3) he was denied effective assistance of counsel because his attorney failed to request an instruction limiting the jury's use of evidence of the defendant's gang affiliation. Based on these issues and the cumulative effect of the claimed errors, the defendant requests that both cases be reversed and remanded for further proceedings. We affirm.
The record shows that the defendant made his first appearance in case No. 98--CF--678 without counsel on October 19, 1998. At that time, a copy of the information charging aggravated discharge of a firearm was served on him, and counsel was appointed. A superseding indictment was filed on October 23, 1998, adding charges of attempted murder. On November 5, 1998, the defendant appeared on closed circuit television for his arraignment. Counsel entered the defendant's plea of not guilty and waived a formal reading of the indictment. The defendant then asked if his attorney was going to talk to him. When counsel said he had just received the file and police reports, the defendant responded, "All right. This is bullshit, man."
Prior to trial, the defendant moved to bar evidence of his gang affiliation. This motion was denied.
At trial, 13-year-old L.M. testified that she was standing outside her home on Poplar Street in Kankakee, Illinois, on the afternoon of October 16, 1998. She was talking to her brother, 17-year-old Miguel, when she observed two young men approach the house. L.M. recognized one of the men from the neighborhood as Breck Brookshaw. The other, a Hispanic, she did not recognize. As L.M. watched, Brookshaw handed a gun to the Hispanic. When they reached the middle of the street in front of the house, the Hispanic yelled, "Harrison Gent killer" at Miguel. Miguel yelled back, "King killer." The Hispanic then pulled out the handgun and fired at Miguel. Miguel ran into the house and came back out with his friend, Anthony Doss, a Maniac Latin Disciple. L.M. said the Hispanic fired the gun at Miguel and Doss, then he ran down an alley with Miguel and Doss in pursuit. She heard three more gunshots.
A short while later, the police arrived at L.M.'s house to investigate the shooting. Two squad cars also pulled up. L.M. said she identified Brookshaw in the first squad car and the Hispanic shooter in the second. The prosecutor asked if L.M. saw the shooter in the courtroom. She said she did not. L.M. said that Miguel was deceased at the time of the trial from causes unrelated to the shooting.
Anthony Doss testified that he was talking to his girlfriend inside the house, when Miguel came in and said that Latin Kings were outside. Doss said that neither the Harrison Gents nor the Maniac Latin Disciples got along with the Latin Kings. Doss went outside with Miguel and saw "the Mexican guy" in the street pointing a handgun at them. After a brief exchange of words, the man fired once or twice. Doss and Miguel ran back inside and then came back out. The shooter ran down an alley. When he saw Doss and Miguel in pursuit, he turned and fired two more rounds at them. Doss and Miguel turned back and phoned the police. Doss subsequently identified the shooter when the police brought him to the scene in a squad car. He denied seeing the shooter in the courtroom.
Breck Brookshaw testified that he was a Vice Lord and a friend of the defendant. At the time of the offense, the Vice Lords and Latin Kings were "at war" with the Harrison Gents. He said the defendant told him to hold a black .380 "nation" pistol when they left defendant's house on October 16, 1998. As they approached Poplar Street, the defendant asked for the gun and Brookshaw passed it to him. The defendant exchanged verbal gang insults from the street with Miguel, who was standing on his front porch. Then, the defendant fired at Miguel. Brookshaw took off running. Brookshaw heard two more shots and met up with the defendant a block and a half away. Brookshaw said the defendant "unjammed" the gun. The defendant hid it behind a friend's house, and Brookshaw picked it up. A short time later, they saw the police and began running. Brookshaw tossed the gun in some weeds before they were apprehended. Brookshaw identified the gun in court as the one used in the shooting. Brookshaw subsequently pled guilty to his part in the offense and received an eight-year prison sentence with "boot camp" recommended in exchange for his testimony.
Police witnesses testified that they recovered a black .380 handgun in the alley near where they apprehended the defendant and Brookshaw. The police returned the young men to the scene, where Doss and L.M. identified the defendant as the shooter. Expert testimony established that a spent shell casing recovered from the street outside L.M.'s house had been fired from the gun recovered from the alley. The defendant's fingerprint was found on the magazine inside the gun.
After the State rested, the defense rested without presenting evidence. Following closing arguments, the defendant was returned to the jail, from where he viewed the return of the verdict via closed circuit television. The jury found the defendant guilty of aggravated discharge of a firearm, but not guilty of attempted murder. After the jurors were polled, the court entered a finding that defendant was in violation of his probation.
The defendant was sentenced, as aforesaid, ...