The opinion of the court was delivered by: Justice Reid
Appeal From The Circuit Court Of Cook County Honorable Dennis Dernbach, Judge Presiding
Following a jury trial, Ricardo Lima (Lima) was convicted of one count of first degree murder (720 ILCS 5/9-1 (West 1992)) and three counts of attempted first degree murder (720 ILCS 5/8-4, 9-1) (West 1992)) . He was first sentenced to 60 years for the murder and to a 10-year concurrent sentence for the attempted murder. Following a motion to reduce the sentence, Lima's sentence was reduced to 50 years for the first degree murder and to a 10-year consecutive sentence for the attempted first degree murder. He now appeals the conviction and the revised sentence. We affirm defendant's convictions and sentence for first degree murder and modify defendant's sentence for attempted first degree murder to run concurrently for the following reasons.
Lima was 16 years old at the time of his arrest. He was charged with first degree murder (720 ILCS 5/9-1 (West 1992)), attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1992)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2 (West 1992)) in connection with the shooting death of Armando Rodriguez (Rodriguez) and the shooting at Ruben Martinez (Martinez), Juan Ocun (Ocun) and Rocky Salazar (Salazar).
Prior to the trial, Lima moved to suppress his post-arrest statement. In that motion, Lima claimed he was coerced into signing his handwritten statement, that his requests to see his mother were ignored and that he was not informed of his constitutional rights at the time he made his statements. Lima also moved to bar the introduction of evidence of gang involvement. The trial court held a hearing on the motions in which the State called Detective Dennis Walsh (Walsh) and Lima called his mother, Kathleen Rivera (Rivera). Walsh testified that he was investigating the shooting death of Armando Rodriguez. After other officers had arrested Lima, Walsh testified he arrived on the scene. Since Lima was a juvenile, Walsh claimed he contacted the Area 4 Youth Division and told them to have a youth officer available as soon as possible. Walsh claimed he went into the interview room at approximately 12:45 a.m., introduced himself to Lima and informed him of his constitutional rights. That phase of the interview lasted approximately 10 to 15 minutes. At that time, according to Walsh, Lima denied his involvement in the shooting.
At approximately 1:30 a.m., Walsh testified he went back into the interview room with youth officer Robert Mihajlov. Walsh claimed the youth officer introduced himself and explained his role in the process, after which they began to discuss the shooting. In an interview that lasted approximately 10 to 15 minutes, Walsh testified that Lima admitted some involvement in the shooting. At 2 a.m., Walsh claims he allowed Kathleen Rivera to visit with her son for approximately 10 minutes. He claimed that, upon leaving the interview room, Rivera told Walsh she had to go home for some medicine. Walsh claimed Rivera left at that time. Walsh next claimed he, Mihajlov and Assistant State's Attorney Michael O'Malley went back into the interview room at approximately 3 a.m. O'Malley introduced himself and advised Lima of his rights. He also informed Lima that, should the victim die, he could be charged as an adult. According to Walsh, Lima again admitted his involvement in the crime. At the conclusion of that interview, Walsh testified he told Lima's mother that she would be allowed to see her son.
Walsh then testified that O'Malley wrote Lima's handwritten statement in Lima's presence. Lima was allowed to make corrections but never refused to sign the handwritten statement. According to Walsh, Lima never asked for the presence of an attorney or his mother. Walsh claims no one ever refused to allow Lima's mother access to her son and never threatened or physically coerced Lima into signing the statement.
Kathleen Rivera claimed that she got off work at approximately 10 p.m. on the night of the shootings. She drove to Ohio and Oakley Streets to pick up her two sons. Rivera claimed she was told that her son was just being questioned. Electing to go to the police station instead of waiting at home to hear what would happen with her son, Rivera claimed she arrived at the police station between 11:30 and 11:45 p.m. Rivera spoke with Detective Walsh, who told her she would not be able to immediately speak with her son because the State's Attorney had stepped out. She was told she would be able to speak with her son when the State's Attorney returned. Rivera claims that she had to ask Walsh to see her son seven or eight times. At some point after she had made a few requests, she claims Walsh told her she was getting on his nerves and she might not get to see her son at all if she did not stop annoying him.
Rivera testified that she finally got to see her son at approximately 2 a.m. She did not get to see her son in private, as she claimed six plainclothes police officers were inside the room. She also testified that, when she finally got to see him, one side of Lima's face was swollen. According to her, she asked Lima in Spanish about the injury to his face. Lima allegedly responded that he could not talk about it, but he moved his eyes like he was trying to send a signal for her to drop her line of questioning.
In closing arguments on the motion to suppress, Lima's counsel argued that, because he was 16 years old at the time of the arrest, Lima should have again been read his Miranda rights before the start of the second interview. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The trial court found that Rivera's estimate of her arrival time was not accurate. The trial court also found that Walsh was credible and that Rivera did get the chance to be alone with her son after the original oral statement was made and before the handwritten statement. Finally, the trial court ruled it was unaware of any case law requiring police to give fresh warnings pursuant to Miranda each time they speak with a suspect. Additionally, the trial court denied a pretrial motion in limine to bar introduction of evidence of Lima's gang involvement.
A jury trial commenced in this case on January 27, 1998. The State first called Salazar, a member of the Satan Disciples street gang, who testified he, Ocun and Rodriguez were passengers in a minivan driven by Martinez. All were members of the Satan Disciples except Ocon, who was a member of the Latino Jivers street gang. According to Salazar, the Satan Disciples and Latino Jivers were on friendly terms. He also claimed there were no weapons in the vehicle. After driving a while they dropped off Martinez at his girlfriend's home then continued to drive on Erie Avenue in Chicago. Erie Avenue is the line of demarcation between the gang territory of the Latin Kings and C-Notes. Salazar testified they saw seven or eight men on the sidewalk parallel to the minivan. Salazar claimed these men were C-Notes and that one of them was Lima. Salazar and Lima had known each other for a long time. According to Salazar, Lima jumped off the sidewalk and into the street along the passenger side of the van. Salazar, seeing Lima, ordered Martinez to increase speed because the C-Notes were outside. Turning, Salazar claims he saw Lima fumbling with his clothing then heard shots fired. Salazar estimated he heard five or six gunshots from behind the van. One of the bullets flew past his shoulder, hitting the front metal part of the window, causing a spark. Through the rearview mirror, Salazar claimed he saw Lima standing by himself in the street behind the van. Salazar testified that, after realizing Rodriguez had been shot, they drove him to the hospital. On cross-examination, Salazar admitted to being a drug user and having been on drugs on the evening in question.
Ocon was the next to testify. He testified that he was a passenger in the van when someone jumped in the street and started shooting at them with a chrome gun. Though Ocon could not see the face of the shooter, he claimed he could tell he was wearing a "hoodie" and a black coat. He also testified he heard six shots fired.
Martinez, currently serving a seven-year term in the Illinois Department of Corrections for arson and drug charges, testified next. As he slowed down in front of his girlfriend's house, Martinez claimed he saw 10 to 15 people standing on the sidewalk. He accelerated when he heard gunshots. Martinez, who had been smoking marijuana that evening and claimed he did not know what was going on, sped away from the scene. They then realized that Rodriguez had been shot in the head and would need to go to the hospital. Martinez testified he drove Rodriguez to the Norwegian American Hospital, where they dropped off Rodriguez before going to get his parents and take them to the hospital. Martinez acknowledged identifying Lima at a lineup and before the grand jury, but testified at trial that Lima was not the shooter.
Chicago police officer James Shadur testified next. He is an evidence technician assigned to the mobile unit of the crime laboratory. On December 22, 1996, the night in question, Shadur responded to a call of a shooting at 2220 West Erie Avenue in Chicago. When he arrived on the scene, the police had been protecting the crime scene. Shadur spoke with the officers and detectives at the scene. He then photographed the scene and surrounding areas and looked for physical evidence. Shadur found six .9-millimeter cartridge cases on the south side of the street. He also found a fired bullet on the sidewalk area of a house on a diagonal line from the crime scene, at 2204 West Erie Avenue. This was further east than where he found the cartridge casings.
After he processed the crime scene, Shadur went to Norwegian Hospital to process the van. He photographed the van, finding a fired bullet on the front passenger's seat. He also noticed holes in the exterior of the van. Additionally, the rear window was shattered and a brake light had a bullet hole through it.
Detective Thomas Flaherty testified next. He was assigned to investigate the shooting with Detective Dennis Walsh and Detective Carlos Velez. They learned that Rodriguez had been shot in the back of the head and would likely be transferred from Norwegian American Hospital to Cook County Hospital. Once they arrived at Norwegian American Hospital, they spoke with Martinez. Martinez indicated at the time of the interview that Lima was the shooter. Martinez also indicated that the van was parked in the hospital parking lot. Flaherty examined the van. He subsequently went to the scene of the shooting, where he saw spent shell casings and a fired bullet. While he was there, Flaherty monitored a radio message that Lima had been arrested. Flaherty next went to the location where Lima was arrested. Lima was taken to Area 4 Violent Crimes by other police officers. After Lima was taken into custody, Flaherty was present when Lima was identified in a lineup by Martinez and Salazar.
Cook County Assistant State's Attorney Michael O'Malley next testified that he interviewed Martinez and Lima at the police station. As to Lima, O'Malley claimed he explained that he was not Lima's lawyer. O'Malley also testified he read Lima his Miranda rights after which Lima agreed to waive his rights and talk with him. O'Malley confirmed that, after he explained the different types of statements that could be made, Lima chose to give a handwritten statement.
O'Malley testified that he, Detective Walsh and youth officer Mihajlov left the room to give Kathleen Rivera a chance to be alone with her son. Lima told O'Malley that his choice was not to have his mother present for the actual giving of the handwritten statement. O'Malley testified he wrote out the statement. He then had Lima read aloud his Miranda rights and the first few paragraphs of the statement. O'Malley explained he read the remainder of the statement aloud, periodically asking Lima if he wanted to make any corrections or additions to the statement. Lima indicated that he did not want to change anything.
In the handwritten statement, Lima admitted having been a member of the C-Notes gang since he was 10 years old. He knew Martinez since he was five years old by his nickname "the professor." He knew Martinez was a member of the Satan Disciples, enemies of the C-Notes. Lima admitted to keeping a gun in a garbage can behind his girlfriend's house where he would sometimes sleep. On December 21, 1996, he took the gun from the garbage can and put it in the waistband of his pants. Armed with the fully loaded gun, Lima went to Tammy Aceituno's home at 2309 West Grand in Chicago. Once a larger group of C-Notes was present, they went to hang out on Oakley Street where Lima met more C-Notes. The group of six decided to go to Erie Avenue, near Hoyne Street. As they were walking eastbound on Erie Avenue, someone yelled out Ruben, which is Martinez' first name. Lima indicated he turned around and saw the van he recognized as belonging to Martinez. Lima, because of the bad blood between them, began yelling obscenities at Martinez. He claims Martinez responded in kind. Lima then drew his gun and began shooting at the van. After being hit by some of the bullets, the van sped off down Erie Avenue.
After the shooting, Lima indicated he ran toward Leavitt Street with the gun at his side. When he reached the Holy Rosary Church, Lima lifted a nearby sewer cap and disposed of the gun down the hole. He then went back to Tammy Aceituno's house, where he stayed approximatly 15 minutes until the police arrived. The statement concluded by stating that he was allowed to meet with his mother a couple of times, was fed, given beverages and allowed to use the washroom when necessary. Additionally, the statement indicates Lima was not threatened or promised anything in exchange for making his statement.
In concluding the State's case in chief, certain stipulations were introduced. Doctor Segovia, an expert in forensic pathology, would testify that her job as deputy medical examiner required her to perform a post mortem on Rodriguez. She found a gunshot entrance wound at the back of the victim's skull. The path of the bullet extended from the entrance wound through his brain where it lodged. In her expert opinion, Rodriguez died as a result of the single gunshot wound to the back of his head.
The next stipulation was from Brian Mayland, a forensic evidence examiner for the Illinois State Crime Lab and expert in firearms analysis. Mayland examined the bullet casings from the van and the one retrieved from Rodriguez's head. Each of the bullets found was fired from the same weapon. One of the bullets was damaged, so it could not be compared.
Once the State's case in chief was concluded, Lima made a motion for directed verdict, which was denied by the trial court. The defense next put on its case-in-chief, starting with Kathleen Rivera. While she was working at the United Center, some police officers assigned there told her of an announcement on the radio that her sons had been arrested. When she got off work, Rivera went to Ohio and Oakley Streets to pick up her other son Rafael. Upon arrival she saw Rafael in handcuffs against a car. Collecting her sister, Gina Falco, Rivera went to the Area 4 police station. Rivera estimated she arrived at the police station at approximately 11:30 p.m. Detective Walsh told her she could not see Ricardo right away. She was allowed to see Ricardo at approximately 2 to 2:30 a.m., after he was interviewed by Assistant State's Attorney O'Malley. Rivera testified that she was not allowed to be alone with Ricardo as there were five or six plainclothes officers present when she finally got to see him.
Lima testified next. He testified that he was a member of the C-Notes gang since he was 11 years old. On the night in question, Lima and several of his fellow C-Notes were walking down Erie Street when they saw the van. Lima claims he saw Salazar and Martinez in the front seat of the van while he was standing in the middle of the street. Lima testified that Salazar yelled an obscenity at him. He claimed that he and Martinez had been in an automobile accident the previous year at which time Martinez allegedly fired gunshots at Lima. A week prior to the incident for which Lima was on trial, Lima testified that Martinez and some of his friends jumped out of a van and chased after him, brandishing baseball bats and golf clubs.
In the case at bar, Lima claims that he saw the van begin to back up toward him. Because he was afraid that some of the occupants were armed, Lima claims he fired his weapon at the van in self-defense and did not intend to kill anyone. After the shooting, Lima ran to Leavitt Street, stopping at the Holy Rosary Church, where he threw the gun down a sewer.
Lima testified that, once he was arrested, the police never let him tell his story or explain how the previous conflict with Martinez happened. Lima also claimed that he initially refused to sign the written statement but, after being thrown against a wall by the police, who threatened to arrest his brothers as accessories, Lima signed the statement. He also claimed he was only allowed to visit with his mother once and not until he signed the statement. Further, Lima claims he was not given the choice as to what kind of statement to make or given the opportunity to simply tell what happened. According to him, Lima only got the chance to answer yes or no to questions.
On cross-examination, Lima admitted he knew the C-Notes and Satan Disciples were at war. He admitted he was carrying a 9 millimeter pistol with him that he purchased from a man off the street. While Lima claimed the gun was to protect himself from someone from whom he stole money, he claimed that it was not to protect him from Martinez. Lima admitted he did not see weapons in the van when it drove by. He also admitted that no one got out of the van prior to the firing of the first shots. According to Lima, he asked for his mother and a lawyer at least 10 times but was refused.
The defense next called Pamela Stiglich, who testified to witnessing the baseball bat and golf club incident. She acknowledged she has a conviction for insurance fraud for which she received probation. Stiglich admitted she did not call the police or report what she saw.
After the defense rested, youth officer Mihajlov testified that, contrary to her testimony, Rivera did get to speak with her son alone. Mihajlov also testified that Rivera had a second private meeting with her son after he had spoken with the Assistant State's Attorney. Both of these meetings preceded his written statement. He also testified that Lima did not want his mother present for some of the proceedings. He further testified that no brutality took place and no one threatened that Lima's brothers would be held as accessories.
Detective Walsh testified in rebuttal that Rivera was never denied access to her son. He also denied throwing Lima ...