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People v. Barajas

May 15, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFFS-APPELLEES,
v.
JOSE BARAJAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County 97 CR 24542 The Honorable Daniel M. Locallo, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFFS-APPELLEES,
v.
JOSE BARAJAS, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County 97 CR 24542 The Honorable Daniel M. Locallo, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Defendant-appellant, Jose Barajas, was convicted of first degree murder and two counts of aggravated discharge of a firearm. He was sentenced to 34 years' imprisonment for first degree murder and 4 years' imprisonment for each count of aggravated discharge of a firearm, to be served consecutively. Defendant presents the following issues upon appeal: (1) whether the trial court erred in allowing a Chicago police officer to testify as a gang expert regarding gang hierarchy, territory, rivalries, gang rules, and drug sales; and (2) whether his sentences for first degree murder and aggravated discharge of a firearm should be modified to run concurrently.

 We affirm in part and vacate in part.

BACKGROUND

At defendant's jury trial, Anna Torres testified for the State that on September 27, 1995, at about 1 p.m., she observed a four-door vehicle traveling on Washtenaw with a grey vehicle following closely behind it. In the second vehicle, Torres noticed one person in the driver's seat and two passengers in the backseat. As the cars approached the intersection of Washtenaw and Cortland, Torres heard four shots coming from the second car. She heard shots being fired by the passenger sitting behind the driver in the second car. Torres testified that she recognized the shooter and, in court, she identified the defendant as the shooter. During cross-examination, Torres stated that she recognized the driver of the second car as a man who was known as Bull.

Darrell Johnson testified for the State that in 1995, he was a member of the Maniac Latin Disciples street gang. He testified that he did not remember whether the Maniac Latin Disciples were at odds with any other gangs in September 1995. He also testified that he knew the victim, Eric Givens, because they grew up together and he was a good friend of his in 1995. Johnson testified that Givens was a member of the Maniac Latin Disciples and that Givens' nickname was Bull. He further testified that Astol Arroyo went by the name of Lurch.

During direct examination, Johnson was shown a picture of a grey Cadillac. The State asked, "[D]o you remember back in September of 1995 being in the car when some shots were fired?" Johnson responded, "No." The State further inquired, "You don't remember at all? *** Total memory lapse of the month of September of '95?" Johnson responded, "Yes." Then the State asked whether Johnson was with Givens when he was shot. Johnson stated that he did not remember being in the vehicle, who was in the vehicle, who shot Givens, who took Givens to the hospital, or any other details of the day Givens was shot. Johnson could not recall looking through photographs or indicating that one them was a photograph of the shooter. He could not recall testifying before the grand jury. He was shown a statement that he gave at Area 5 police station on June 7, 1997, in which he implicated defendant as the shooter. He acknowledged that his signature appeared on each page. He could not recall whether the assistant State's Attorney read the statement to him or whether he made corrections or signed each page. He could not recall providing the information contained in the statement. He testified that he did not know whether "folks" have a rule that gangs under that umbrella do not testify against other "folks." He testified that he did not know what a "violation" was.

Astol Arroyo testified for the State that he was a member of the Maniac Latin Disciples gang in September 1995. Arroyo testified that on September 27, 1995, at about 12:50 p.m, he was riding around in a grey Cadillac with Darrell Johnson and Eric Givens in the area of Washtenaw and Cortland. Arroyo was driving and Darrell Johnson was in the passenger seat next to him. Eric Givens was in the backseat, directly behind Arroyo. Arroyo testified that as he was driving, he noticed a grey car on the east side of Washtenaw on Cortland. He stated that he stopped at the stop sign on Cortland and as he crossed Cortland, he slid his head out of the car and saw a "machine gun, little uzi, whatever it was, it was not a handgun" coming out of the backseat, on the driver's side of the other car. He stated that after he heard the first shot, he "hit the gas pedal and took off." Arroyo testified that he only noticed a driver and the shooter occupying the other vehicle, but denied seeing their faces. He did not hear anyone from the other car yell anything. He heard between seven and nine shots fired. Arroyo testified that Givens told him to drive to the hospital because he had been shot. Arroyo also testified that he spoke with a Chicago police officer at the hospital.

Arroyo stated that on October 4, 1995, a week after the shooting, he spoke with Detective Wojcik about the shooting. Arroyo denied telling Wojcik that he recognized the shooter as a member of the Latin Lovers gang or that he asked the detective to keep his identity confidential for as long as possible.

The State inquired about the written statement signed by Arroyo on June 7, 1997, regarding the events of the September 27, 1995, shooting. Arroyo testified that when he arrived at Area 5 violent crimes headquarters on June 7, 1997, Assistant State's Attorney Lorraine Scaduto had a statement already written up for him to sign regarding the events on September 27, 1995. He stated that he read it to make sure it did not incriminate him and then he signed it. He denied ever speaking to Scaduto prior to her submitting it to him for his signature. Arroyo also testified that in July 1997 he was present before a grand jury.

Arroyo further testified that in September 1995 the Latin Lovers and Maniac Latin Disciples were at war "at times." He also stated that he was aware that about 10 hours before the shooting of Eric Givens, a Latin Lover named Floco had been murdered. He testified that he was not aware of any gang rule that said that "folks don't testify against folks." He testified that "a violation is when you get beat up" by other members of the gang.

On cross-examination, Arroyo testified that he went to the police station with officers on the day of the shooting and viewed approximately two photo books, but he did not identify anyone as the shooter because he did not have a clear view of the shooter. The day before Givens' burial, Arroyo was brought to the police station for traffic violations. He stated that Detective Wojcik used threats and promises to force him to identify defendant's photo as the shooter.

Assistant State's Attorney Lorraine Scaduto testified for the State that on June 7, 1997, she was called to assist detectives at Area 5 regarding the investigation of a homicide that occurred on September 27, 1995. Scaduto testified that Arroyo gave her a statement dated June 7, 1997, regarding the shooting and that she explained to him that his statement would be memorialized and he would have the opportunity to make any additions, changes or corrections to that statement once it was written. Scaduto also stated that Darrell Johnson gave her a statement dated June 7, 1997, regarding the murder of Givens. Scaduto published Johnson's and Arroyo's statements to the jury. Johnson's statement provided, in pertinent part:

"Darrell Johnson states that on September 27, 1995, at about 12:50 p.m. he was in Eric Givens' car with Eric and Astol Arroyo. Darrell Johnson states that as they were approaching Washtenaw he saw a grey car driving west on Cortland. *** Darrell Johnson states that he heard someone from the grey car yell out something and that Bull told Lurch to stop the car. *** Darrell Johnson states that Bull thought maybe the guy in the grey car was a customer, but that when Darrell looked at the guy he recognized him to be a member of the Latin Lovers street gang, which Darrell states were Maniac Latin Disciple's rivals at that time. Darrell Johnson states that in September 1995 there was a war between the two gangs because a 'D' killed a Lover. Darrell Johnson states that 'D' is short for Maniac Latin Disciples. Darrell Johnson stated that he saw the Latin Lover point a large black gun at Bull's car from the driver's side of the car he was in Darrell Johnson state that he told Lurch to drive away when he saw the gun. Darrell Johnson states that he had a clear view of the Latin Lover's face at this time and saw him shoot the gun one time. *** Darrell Johnson states that Bull said he had been hit so Lurch and Darrell took him to the hospital. Darrell Johnson states that he does not know the Latin Lover who shot Bull by name but he knows his face because he has seen him many times in the neighborhood." Arroyo's statement provided, in pertinent part:

"Astol Arroyo states that on September 27, 1995 he was with Eric Givens and Darrell Johnson in Eric Givens' car. *** Astol Arroyo states as he turned right on Wabansia he saw a grey car driving west on Cortland. Astol Arroyo states that as he made the turn Bull said, 'Stop- there's a customer.' *** Astol Arroyo states that he saw a guy in the car looking out, leaning on the door. Astol Arroyo states that the guy said 'Disciple killers mother fuckers.' *** Astol Arroyo states that he recognized the guy as a Latin Lover from California and Milwaukee. *** Astol Arroyo states that in September 1995, the Lovers and the Maniac Latin Disciples were rivals and at war, so when he saw the Lover at Cortland and Wabansia acting bold and disrespectful, he thought he might have a gun. *** Astol Arroyo states that Dee told him 'Go- he's got a gun.' *** Astol Arroyo states that Bull yelled out that he got hit so he and Dee took Bull to the hospital."

The State called Assistant State's Attorney Kevin Golden. Golden interviewed Arroyo on July 8, 1997. Golden stated that Arroyo agreed to go before the grand jury. Golden also interviewed Darrell Johnson on September 9, 1997. Golden stated that, during this interview, Johnson agreed to testify before the grand jury. Golden then published the transcript of Johnson's grand jury testimony. Johnson's grand jury testimony includes the following pertinent parts:

"Q: And what did that [other] car do?

A: They said something out of the car.

Q: Do you know what those people - - do you know what they said?

A: No.

Q: What happened then?

A: Bull opened the door, and I looked back and I saw a guy that I know which was a Latin Lover.

Q: And the guy you knew, where was he at in the other vehicle?

A: He was driving.

Q: Do you recall what his name is?

A: Negro.

Q: Now, in 1995 were the Latin Lovers and the Maniac Latin Disciples, were they getting along at that time?

A: No.

Q: Were they at war?

A: Yes.

Q: When you saw Negro in the driver's seat of that car, what happened next?

A: I told him to pull off.

Q: You told who to?

A: Lurch to ...


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