Appeal from the Circuit Court of Cook County. 95 CR 20328 The Honorable John Moran, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen.
On February 25, 1999, after a jury trial, defendants Roberto Abadia and Octabio Arias were convicted of first degree murder (720 ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder (720 ILCS 5/8-4 (West 2000)), aggravated battery with a firearm (720 ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS 5/33A-2/I/12-4(A) West 2000)). Defendants were each sentenced to consecutive prison terms of 90 years for first degree murder and ten years for attempted first degree murder. Defendants' appeals were consolidated. Arias argues that: (1) there was insufficient evidence to support his convictions; (2) a new trial is required because inadvertently the jury was not sworn until the second day of trial; (3) a new trial is required because of prosecutorial misconduct during rebuttal argument; and (4) the 90-year sentence should be reduced because it is excessive and unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Abadia was granted leave of court to adopt the four arguments raised by Arias on appeal. In addition, Abadia argues ineffective assistance of counsel predicated on his attorney's failure to present a defense at Abadia's trial. We hold that the evidence was sufficient to convict the defendants and that the short time the jury was unsworn did not prejudice the defendants. However, we find the prosecutor's comments in rebuttal were improper and resulted in substantial prejudice to the defendants. As we cannot confidently state that the trial was fundamentally fair, we reverse the defendants' convictions and remand the case for a new trial. We need not address the remaining issues raised on appeal.
The evidence adduced at trial reveals that at 4 a.m. on June 20, 1995, defendants traveled in a white Ford Taurus to an isolated dirt road in an industrial area. The area is adjacent to a freight train railroad crossing at 122nd Street in the City of Chicago. Mr. Robert Terry, a locomotive engineer, was seated in the cab of a train stopped approximately 75 feet north of the 122nd street crossing. As Terry was preparing to move the train, he saw the white Ford Taurus containing a driver and passengers drive over the tracks twice before turning south onto the dirt road adjacent to the tracks. The locomotive's lights were set to "dim," illuminating the area a quarter of a mile ahead of the engine car. Terry lost sight of the Taurus on a dirt road because the road was lower than the tracks and surrounded by six-foot tall marsh reeds. Within a few minutes, Terry heard both large and small caliber gunshots. The police would later find Luis Arce's body, surrounded by used bullet shell casings, at the edge of the dirt road near the tall reeds. When his body was discovered, there were two bullet holes in the back of Arce's head and seven other bullet wounds to his body.
Terry heard yelling from the same area from which the first sets of gunshots had emanated. He then heard more gunshots which sounded as if the shooter was drawing near. A few seconds later, Terry saw a young Hispanic man sprint diagonally northeast from the access road across the tracks to the eastern side of the train. Terry then saw the defendants running after the young man while firing their handguns. As the defendants crossed 122nd street and the adjacent set of train tracks, Terry turned all of his locomotive lights to the "bright" setting, illuminating the area up to one and three quarters of a mile ahead of the engine car. Startled by the bright lights, the defendants stopped, looked up at the locomotive and then ran back to the white Taurus, which had backed out of the dirt road and followed the defendants to the paved railroad crossing.
Terry observed the driver as defendants scurried into the car. Defendants drove toward Torrence Avenue on 122nd street. Terry called for help on his radio and spoke to railroad police officer Mark Postma. Terry told Officer Postma of the gunshots, described the vehicle, indicated its direction of travel and described the passengers. While Officer Postma was responding to the radio call for help, a young man, who Terry "figured it [sic] was the guy that had been shot at," approached Terry's locomotive from the northwestern side of the train after the Taurus departed. Terry thought the young man would have had to "crawl under" his train to approach the cab from the northwest because the train extended a mile and a half behind Terry's engine car. The young man, later identified as Gabrielle Gonzales, told Terry that he was hurt and that he needed an ambulance. Terry told Gonzales to sit down because Gonzales' intestines were protruding from his body and he was bleeding. Terry observed Gonzales turning white as if "he was going into shock." Both an ambulance and Chicago police officers arrived at the scene within 15 to 20 minutes.
Officer Postma drove his unmarked police car to the intersection of Torrence and 130th street where he saw the white Ford Taurus described by Terry. The white Taurus was the only other car on the road at the intersection. Officer Postma observed the three passengers and followed the car onto the Dan Ryan expressway. At the same time, he contacted the Illinois State Police. Detective Neil Maas of the Chicago police also responded to Officer Postma's radio communication. With the assistance of Officer Postma and Illinois State Trooper Tim Drozd, Detective Mass executed a traffic stop of the car on the expressway near 86th street. Detective Maas then transported the defendants and the driver of the Taurus to the Area 2 police station. When arrested, the defendants were wearing the same clothing described by Terry at the scene of the crime. Terry identified the defendants later that same day from a line-up.
The defendants were convicted of first degree murder (720 ILCS 5/9-1(A)(1) (West 2000)), attempted first degree murder (720 ILCS 5/8-4 (West 2000)), aggravated battery with a firearm (720 ILCS 5/12-4.2A(1) (West 2000)) and armed violence (720 ILCS 5/33A-2/I/12-4(A) (West 2000)). Defendants were each sentenced to consecutive prison terms of 90 years for first degree murder and ten years for attempted first degree murder. This appeal followed.
I. Sufficiency of the Evidence
"When reviewing the sufficiency of the evidence in a criminal case, the proper standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350, 353-4 (1999). The function of this court is not to retry the defendant. People v. Digirolamo, 179 Ill. 2d 24, 43, 688 N.E.2d 116, 125 (1997). "Circumstantial evidence is sufficient to sustain a conviction if it satisfies proof beyond a reasonable doubt of the elements of the crime charged." People v. Campbell, 146 Ill. 2d 363, 379, 586 N.E.2d 1261, 1268 (1992). "Determinations of the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact." People v. Emerson, 189 Ill. 2d 436, 475, 727 N.E.2d 302, 324 (2000) citing People v. Nitz, 143 Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991). The trier of fact may consider inferences which flow naturally from evidence presented in court; however, the trier of fact is not required to "search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt." Campbell, 146 Ill. 2d at 379, 586 N.E.2d at 1268.
Defendants argue that Terry is unreliable as an eyewitness because he saw individuals matching the defendants appearance for only a few seconds from 75 feet away and he testified to events inconsistent with the physical evidence at the crime scene. The defendants argue that the locomotive's lights were on the "dim" setting and it is improbable under the circumstances for Terry to have observed sufficient details to make a reliable identification of the defendants. However, the record reflects that Terry turned his locomotive's lights to the "bright" setting after he had observed the defendants run approximately 50 feet from the entrance of the dirt road to the railroad crossing in front of the locomotive. The defendants stopped running and looked up at the cab where Terry was sitting after Terry had already activated the bright lights. The record shows Terry gave an accurate description of the defendants to the police officers shortly after he witnessed the events. Determinations of credibility by the trier of fact are accorded great deference by a reviewing court and we will not disturb this determination. People v. Wittenmyer, 151 Ill. 2d 175, 191, 601 N.E.2d 735, 743 (1992).
Defendants attempt to fortify their unreliability argument by stating that Terry's testimony is inconsistent with the physical evidence. Specifically, defendants argue that Terry testified the defendants were firing their pistols at Gonzales and that Gonzales returned fire with his pistol while he ran away from the defendants. Defendants argue that because the police failed to recover any weapons or shell casings from the area between the entrance to the dirt road and the locomotive and also failed to recover any weapons or casings from the white Taurus, Terry's testimony is unreliable.
The absence of bullet shell casings, except for those surrounding Luis Arce's body, as well as the absence of any weapons does not indicate that Terry's testimony is unreliable. The record contains testimony that Terry observed Abadia with a "chrome-plated revolver" and Arias with a "blue steel or black pistol." Neither weapon was recovered by the police. The record contains no indication whether defendant Arias used a revolver, a semi-automatic or an automatic weapon. Police officer Patrick Moran, who works as an evidence technician with the Crime Scene Processing Section of the Chicago Police Crime Lab, testified that shell casings are mechanically ejected from automatic and semi-automatic type weapons after each bullet is fired and that shell casings from a revolver must be manually removed. Without evidence as to whether automatic or semi-automatic weapons were used to shoot Gonzales, the defendants have no evidence to support the conclusion that shell casings should be found near the railroad crossing. Similarly, the failure of police to recover any weapons or shell casings from the white Taurus does not vitiate the reliability of Terry's eyewitness testimony. As the record contains no evidence that the guns were ever fired inside the car, there is nothing to support an inference that shell casings or weapons would be found inside the car.
Although the defense attempted to impeach Terry with a police report stating that Terry saw Gonzales turn towards the defendants with an outreached arm as if he had a weapon, the record reveals that Terry clarified his testimony by stating at trial that he did not see a gun in Gonzales' hand. While defendants persist in arguing on appeal that Gonzales had a weapon, whether Gonzales possessed a weapon is a credibility determination, which we will not disturb here. Emerson, 189 Ill. 2d at 475, 727 N.E.2d at 324.
We find Terry's testimony at trial was consistent with the facts in the record. Defendants cannot point to any evidence in the record to support their argument that Terry's testimony is inconsistent with the physical evidence. Defendants fail to show Terry's testimony is unreliable. Thus, after viewing the evidence in the light most favorable to the State, we are convinced that a rational trier of fact could have found the elements of the crimes beyond a reasonable doubt. Lamborn, 185 Ill. 2d at 590, 708 N.E.2d at 353-4.
Defendants argue that while the court did timely instruct members of the jury on the trial process and their duties, the court inadvertently allowed the jury to hear a full day of testimony before the court administered the juror's oath to the jurors. Defendants seek a new trial based on this one day delay.
Defendants raise this issue for the first time in this appeal. "Issues not raised at trial and not presented in a written post-trial motion are ordinarily deemed waived on review." People v. Hicks, 181 Ill. 2d 541, 544, 693 N.E.2d 373, 375 (1998). However, the issue raised by defendants is unusual and "the goals of obtaining a just result and maintaining a sound body of precedent may sometimes override considerations of waiver." Hicks, 181 Ill. 2d at 544, 693 N.E.2d at 375. The principle of waiver "limits the parties' ability to raise an argument, not this court's right to entertain an argument." People v. Heard, 187 Ill. 2d 36, 60, 718 N.E.2d 58, 72 (1999). We choose to address the merits of the claim as we view this issue as one of first impression in Illinois and find analysis appropriate.
Defendants argue that the juror's oath is critical to the administration of justice. *fn1 One cannot disagree that the juror's oath is a solemn vow to serve the rule of law which governs the social contract of our society. The juror's oath is essentially a promise to lay aside one's "impression or opinion and render a verdict based on the evidence presented in court." People v. Williams, 40 Ill. 2d 522, 531-32, 240 N.E.2d 645, 651 (1968). The issue here is whether the failure to administer the juror's oath until the conclusion of the first day of testimony vitiates the entire proceeding and entitles defendants to a new trial.
The record reveals that defense counsel objected neither to the failure of the court to administer the juror's oath on the first day of trial nor to the belated administration of the oath on the second day of trial. Defendants do little more before us than to identify this procedural irregularity and hope for a favorable ruling. They offer no argument and give this court no suggestion as to how they were prejudiced by the delayed swearing of the jury. This court cannot engage in speculation; thus, we turn to the record of proceedings for guidance.
Jurors are generally instructed and sworn to hear all the evidence without forming opinions as to guilt or innocence until the end of the trial. In the present case, the judge instructed the jury prior to hearing evidence:
"Ladies and Gentlemen, I am going to talk with you for five minutes or so, and then we will excuse you for today, and we will pick up again tomorrow.
The hardest thing about being a juror is that you can't discuss the case with anyone, so I am ordering you not to discuss the case. That is in fairness to both sides. What you need to do is wait with an open mind until you hear all the evidence in the case, and then wait until I read to you what the law is and instruct you as to the law you are to apply to the case, and then, when you go back to the jury room, then and only then is it proper to begin to discuss the case, so do not discuss the case among each other, with each other when you are waiting in the morning or lunch, and don't discuss it at home with anyone else. When you go home, somebody will say, "Were you picked," and you will say, "Yeah, I don't believe it." They will say, "What kind of case is it," and you will say, "I can't tell you." I don't want you to tell them what kind of case it is, and I don't want them to say anything about what they have saw or read. I want you to decide the case based on the evidence you will hear in this courtroom.
By the same token, for the same reason, I am ordering you not to watch the TV news tonight or listen to News Radio 78 or news radio programs or watch any TV, crime dramas, police dramas, or courtroom dramas. I don't expect that this case will be discussed, but I don't want any other external things to enter into your consciousness when you are focusing on this case. Again, I want you to decide the case on the evidence in the case, and that is the reason for the order regarding that.
Ladies and Gentlemen, with that, if you would go back to the jury room, she will show you the jury room in the hallway. *** At the close of the case, I will instruct you that those of you who took notes may use your notes during deliberations. Those of you who do not take notes should not give undue weight to the recollection of a juror who did take notes just because they took notes. Your recollection of the evidence, even thought you didn't take notes, may be just as good or reliable as a juror who did take notes.
So, with that, Folks, we will see you tomorrow at 10:15 A.M. Thank you."
The extensive nature of the Judge's pre-trial instructions to the jury and the fact that the jury in this case was sworn before they began deliberations obviate our concern that the proceeding was tainted. All the concepts required by our system of justice to be communicated to a juror were effectively imparted in these pre-trial instructions. In this case, it is clear from the record that the pre-trial instructions preserved the integrity of the proceeding until the juror's oath was administered. While swearing the jury is preferably done prior to opening statements (as all pre-trial instructions may not be as thorough as those given in the instant case), the one ...