The opinion of the court was delivered by: Presiding Justice Quinn.
Appeal from the Circuit Court of Cook County; Honorable Marcus R. Salone, Judge Presiding.
MODIFIED UPON DENIAL OF PETITION FOR REHEARING April 3, 2001
Following a jury trial, defendant Ricardo Joya was convicted of first degree murder and attempted first degree murder and sentenced to 30 years' imprisonment. On appeal, defendant contends that: (1) the trial court abused its discretion in allowing the State to introduce evidence of defendant's alleged gang affiliations; (2) the trial court abused its discretion in admitting defendant's statement where he spoke only Spanish and could not read, speak or write in English; (3) the State failed to prove him guilty beyond a reasonable doubt; (4) he was denied his right to a fair trial because he was tried before a judge who he named in a motion for substitution of judge; and (5) he was denied effective assistance of counsel. As we reverse this case based on our resolution of the first issue, we need only further address the second and third issues.
The following facts are relevant to this appeal. Defendant's conviction arose from the fatal shooting of Armando Gomez outside of the Mi Tenampa bar and restaurant at 7100 North Clark Street in Chicago. Prior to trial, defendant filed a motion to suppress and alleged, among other things, that the written statement he signed was in English and that it was not read to him in Spanish. Defendant further alleged that he signed the statement without reading it or having it read to him because he was coerced to do so. After hearing testimony from Detective Richard Abreu and defendant, the court found that the State met its burden and denied the motion. The motion to suppress was heard by Judge Maki. After this opinion was issued, defendant filed a petition for rehearing asking this court to address the issue of his motion for substitution of judge. As the motion to suppress was heard and ruled on by a judge other than the one named in the motion for substitution, we choose not to address this issue.
Defendant also filed a motion in limine to prohibit the State from introducing at trial any reference to defendant's gang membership and to redact mention of gang membership in defendant's statement. The State filed a written response arguing that the gang-related evidence showed that defendant and his co-defendants acted with a common purpose and design. The trial court denied defendant's motion.
At trial, Felipe Gomez testified that on July 4, 1993, he, along with his brothers Armando and Jose, and their friend Arturo Ramirez, arrived at the Mi Tenampa restaurant at approximately 8 p.m. after spending the day attending various Mexican rodeos. Felipe Gomez testified that after dinner, between 10 and 10:30 p.m., the group went to the Mi Tenampa Bar and ordered drinks. At approximately 1:30 a.m., Felipe attempted to leave the bar with his brother Armando. Before he left the bar, Felipe saw four people in front of the bar door. Felipe identified one of those persons as defendant. Once outside, Felipe looked for Jose and Arturo in order to leave. Jose Flores asked Felipe what he was looking at. Felipe replied that he could look wherever he wanted. Flores then asked Felipe if he was looking for trouble, pushed him and then swung at him with a closed fist. Felipe swung back but did not make contact. Felipe testified that Flores put his hands by his waist and said, "[a]ll of you guys are going to die." After hearing this, Felipe and Armando walked quickly toward the bar door. Defendant, Jose Flores, Andres Rubio and Pedro Joya followed them. Felipe tried to pull the door open to ask for help. After he was unable to open the door, he turned around and saw Pedro point a silver gun at him and fire two shots. Felipe moved quickly and was not hit. Felipe saw defendant, Flores and Rubio holding and beating Armando. As Armando said "don't hit me," Felipe tried to run to the restaurant door. Rubio caught Felipe and they struggled. Felipe looked back and saw defendant and Flores on each side of Armando. Armando was on his knees and said "don't fire" when Pedro fired a shot. Felipe watched as Armando fell to the ground. Armando died from gunshot wounds to his chest. Defendant and his brother Pedro fled to Sioux City, Iowa.
Felipe later gave the police a description of defendant, Pedro, Rubio and Flores. During the trial, the State then showed Felipe a photograph, which Felipe identified as defendant.
Arturo Ramirez testified that he was with Felipe, Armando and Jose on July 4, 1993, and that after a day at the rodeo they went to Mi Tenampa for dinner, followed by drinks and dancing at the bar. At approximately 1:30 a.m., three men approached Arturo as he was standing on the dance floor. One of the men punched Arturo in the nose. Arturo did not retaliate. Arturo identified the one who hit him as defendant. Arturo testified that he had never met defendant before that evening. Arturo also identified Andres Rubio and Jose Flores as the other two men who approached him that morning.
Arturo testified that the bar owner grabbed defendant so that he would not hit Arturo again and the three men were escorted out of the bar. While Arturo was inside the bar, he heard three gunshots and hit the floor. Felipe Gomez entered the bar and said that his brother had been shot.
On cross-examination, Arturo was asked if he told the officers at the scene that there were only two offenders involved, rather than three. Arturo replied that he told the officer that three men were involved.
Juan Ramirez, owner of the Mi Tenampa Restaurant and Bar, testified that on July 4, 1993, at approximately 1:30 a.m., he was standing next to the dance floor when he saw defendant strike Arturo. Ramirez had not met Arturo before that evening, but had known defendant as a regular customer of his restaurant and bar. After Ramirez asked defendant to leave, a doorman escorted defendant out of the bar. Three to five minutes after defendant was escorted from the bar, Ramirez heard gunshots. Later that night, Ramirez identified defendant from a photo array. On July 24, 1993, Ramirez identified defendant in a lineup at the police station. Ramirez also testified that, two or three months prior to the shooting, defendant told him that he was a member of the Viking street gang. Ramirez admitted that the first time he told anyone about this conversation was the morning of the trial.
Officer Anthony Powell testified that he arrived after the shooting and found the victim lying on the ground. Powell called for an ambulance and assistance. To Powell's knowledge, no knives were involved in the incident and none were recovered from the scene. Powell further testified that his report does not specify the number of offenders involved because he did not inquire as to whether there were more than two offenders when he spoke with Felipe Gomez.
Detective Richard Abreu, who speaks Spanish, testified that on July 6, 1993, he conducted a follow-up investigation of the murder. Abreu returned to the Mi Tenampa bar and spoke with the owner, Juan Ramirez, and showed him a photo array of eight or nine photographs containing defendant's photograph. Ramirez identified defendant from the photo array.
On July 9, 1993, Abreu contacted the Sioux City police department and informed them that there were outstanding warrants for the arrest defendant and the other offenders. That same day, the Sioux City police department contacted Abreu and informed him that defendant and Pedro were in custody. On July 24, 1993, defendant and Pedro were brought back to Chicago and ...