Appeal from the Circuit Court of Cook County No. 98 CR 23340 The Honorable Mary Ellen Coghlan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Defendant Tony Gonzalez was indicted on three counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2000)), three counts of attempt (first degree murder) (720 ILCS 5/8-4 (West 2000)), two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2000)), two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(1), (a)(2) (West 2000)) and seven counts of aggravated battery (720 ILCS 5/12-4(a), (b)(1), (b)(8) (West 2000)). The record reflects the entry of an order of nolle prosequi with respect to the two aggravated discharge of a firearm counts and all of the aggravated battery counts. In October 1999, defendant was tried before a jury in the circuit court of Cook County for the first degree murder of Hector Rivera and attempt (first degree murder) of Luis Marrero, Illuminata Nieves and Yesenia Rodriguez. The jury found defendant guilty of first degree murder as to Hector Rivera and attempt (first degree murder) as to Luis Marrero and Illuminata Nieves. The jury, however, found the defendant not guilty of attempt (first degree murder) as to Yesenia Rodriguez. The trial court sentenced defendant to consecutive prison terms of 30 years for first degree murder and 6 years for each of the two attempt (first degree murder) convictions.
Defendant now appeals his convictions, asserting that: (1) the eyewitness testimony of Luis and Yesenia was insufficient to prove him guilty beyond a reasonable doubt; (2) his convictions should be overturned and a new trial granted because the prosecution misstated the law with respect to evaluating eyewitness identification testimony in closing argument; (3) the trial court similarly erred in instructing the jury with respect to evaluating eyewitness identification testimony; (4) the introduction of gang evidence prejudiced the jury against him and denied him a fair trial; (5) he was denied the effective assistance of counsel predicated on counsel's failure to object to prejudicial gang testimony as well as counsel's elicitation of testimony concerning gang-related activity and defendant's prior criminal conduct; and (6) because consecutive sentences were imposed, based on a matter neither charged nor submitted to a jury, his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Based on the trial court's submission of an erroneous jury instruction with respect to the evaluation of eyewitness identification testimony, we reverse defendant's convictions and remand this cause for a new trial. Because this issue is dispositive, we need not address the remaining issues on appeal.
The evidence introduced at defendant's trial reveals that on the evening of July 23, 1998, Luis Marrero, Hector Rivera and Waldmar Rodriguez were playing dominoes and drinking rum at Illuminata Nieves' apartment, located at 1215 North Washtenaw in the City of Chicago. Yesenia Rodriguez was also present. Illuminata is the mother of Waldmar and Yesenia. Yesenia is Luis' former girlfriend. Luis, Hector and Waldmar were friends who frequently visited together at Illuminata's apartment.
Around 10:30 p.m., the men ended their dominoes game. Waldmar fell asleep in the living room and Hector, Luis, Yesenia and Illuminata went to the kitchen to have coffee. They were drinking coffee and talking until 2 a.m. when Yesenia and Luis began arguing about Luis' alcohol consumption. While they were arguing, Luis exited the apartment through the back door and walked down a flight of stairs to an alley. Yesenia followed closely behind. As Luis turned to face Yesenia (with his back to the alley), a man emerged from the alley, pointed a gun at Luis' head, and screamed "Jiver killer." Just as the gunman began to shoot, Luis ducked. The first shot struck Luis in his arm and the second struck him in his chest. The second shot caused Luis to fall face down onto the sidewalk.
As Luis lay on the sidewalk, the gunman approached Illuminata's apartment, kicked in the door and began shooting at Illuminata and Hector, who were sitting on the staircase. Illuminata suffered a gunshot wound to the throat and Hector received gunshot wounds to his back, right forearm and left inner thigh. When the gunman finished shooting inside the apartment, he exited the building, returned to where Luis was lying and shot Luis in the back. The gunman then turned toward Yesenia, who was pleading for her life, and struck her in the head with the butt of his gun. The gunman finally escaped down the alley from which he had appeared.
Officer Jesus Sanchez was assigned to beat 1414, routine patrol, on the night of the shooting. Officer Sanchez was assisting two women who were locked out of their car when he heard gunshots. As Officer Sanchez approached his vehicle, a call came over his police radio stating that shots were being fired at 1215 North Washtenaw. Only 2 1/2 blocks away from Washtenaw, Officer Sanchez immediately drove to that location in his squad car. When he arrived, Officer Sanchez observed two gunshot victims and a screaming Hispanic woman. Officer Sanchez spoke to the Hispanic woman, who identified herself as Yesenia. Yesenia provided Officer Sanchez with a description of the clothing and complexion of the gunman. Yesenia was unable to tell Officer Sanchez, however, whether the gunman was African-American or Hispanic. After receiving the general description of the gunman from Yesenia, Officer Sanchez dispatched the information over his police radio. When he concluded the call, Officer Sanchez ran down the alley in an attempt to locate the gunman. He was unsuccessful.
Illuminata was taken to Mt. Sinai Hospital for treatment. Shortly thereafter, she was transferred to Saint Mary's Hospital, where she underwent surgery to remove the bullet from her throat. Luis was transported to Cook County Hospital, where he also underwent surgery. Luis was required to remain in the hospital for a week and a half. Hector was discovered by the police in the upstairs bathroom where he had died from multiple gunshot wounds.
On July 25, 1998, Detective Ray Guevara of the Area 5 violent crimes division of the Chicago police department went to 1215 North Washtenaw to interview Yesenia. After a brief conversation, Detective Guevara transported Yesenia to the 14th District police station to view photographs. The book of photographs presented to Yesenia contained photographs related to members of the Spanish Cobra gang. On page 36 of the book, she identified defendant's photograph as the man who shot Luis, Illuminata and Hector on the evening of July 23, 1998.
On the same day, Detective Guevara went to Cook County Hospital to attempt to interview Luis, but Luis was recovering from surgery. The following day, Detective Guevara returned to Cook County Hospital and showed Luis six loose photographs. After viewing the photographs, Luis identified defendant as the gunman. Luis also informed Detective Guevara that the gunman had a mark on his neck and a gold tooth.
Based on the identifications of Yesenia and Luis, Detective Guevara obtained a warrant and defendant was arrested on August 9, 1998. On the same day, Luis and Yesenia went to Area 5 police headquarters to view a lineup. Detective Guevara conducted two separate lineups. Both Yesenia and Luis pointed out defendant as the gunman.
At trial, defendant presented alibi testimony. Edgar Torres, defendant's brother, testified that on July 23, 1998, defendant spent the majority of the day at Edgar's apartment painting a fence in the yard. Edgar testified that defendant remained at the apartment into the evening hours. Edgar further testified that around 9:30 p.m., Tony Gonzalez, Sr., also came to the apartment. According to Edgar, when he went to sleep at 10:30 p.m., both defendant and Tony Gonzalez, Sr., were sitting on the front porch of the apartment.
Defendant's father, Tony Gonzalez, Sr., corroborated Edgar's testimony. Tony Sr. testified that he and defendant were drinking beer on Edgar's porch on the evening of July 23, 1998. Tony Sr. further testified that he and defendant left Edgar's apartment around midnight and arrived home at approximately 12:10 a.m. Thereafter, both sat in the living room watching television and eating sandwiches. According to Tony Sr., defendant went to bed around 12:30 a.m. Tony Sr. continued to watch television until 2:30 a.m. Tony Sr. testified that defendant's room contains no windows or fire escapes and that he never saw defendant exit his bedroom. On cross-examination, however, Tony Sr. admitted that his back was to defendant's room while he was watching television.
Defendant also challenged the reliability of Luis' and Yesenia's identification of him as the gunman. In support, the defense attorney elicited testimony on cross-examination concerning inadequate lighting conditions in the area of the shooting, Luis' position face down after he was shot and Yesenia's state of mind when talking with police. Defendant also presented the testimony of a dentist, who stated that none of defendant's teeth had ever been reduced for a gold crown.
Following closing arguments, the trial court instructed the jury on the applicable law. Immediately thereafter, the jury retired to the jury room to begin deliberations. A half-hour later, the jury sent a note to the court requesting to see both the Spanish Cobra gang book and the six other loose photographs the police had presented to Yesenia and Luis which Yesenia and Luis had used to identify defendant as the gunman. The court denied the request and advised the jury to continue deliberating. Approximately 2 1/2 hours later, the jury tendered another note stating that it was "hung." The court advised the jury to continue deliberating. Following additional deliberations, the jury found defendant guilty of first degree murder of Hector Rivera and attempt (first degree murder) of Luis Marrero and Illuminata Nieves, but not guilty of attempt (first degree murder) of Yesenia Rodriguez. Defendant was sentenced to consecutive prison terms of 30 years for first degree murder and 6 years each for the two attempt (first degree murder) convictions. This appeal followed.
We first address defendant's argument that the trial court erred in instructing the jury with respect to evaluating eyewitness identification testimony. According to defendant, the Illinois Pattern Jury Instruction (IPI) submitted to the jury misstated the law with respect to evaluating eyewitness identification testimony.
The State responds that defendant agreed to the instruction submitted to the jury and that the instruction "follows the text provided by the applicable pattern jury instruction." Furthermore, the State asserts that defendant waived the issue because he failed either to object to the jury instruction at trial or to raise the objection in his posttrial motion.
Defendant concedes that he failed to object to the jury instruction at trial or raise the objection in his posttrial motion. Nevertheless, defendant asks this court to review the issue as plain error. Defendant claims that the plain error exception applies to his case both because the improper jury instruction "infected the jury's ability to properly deliberate and consider the ...