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People v. Arroyo

April 08, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CARLOS ARROYO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 96-CF-1249 Honorable George Bridges, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

Released for publication May 1, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CARLOS ARROYO, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lake County. No. 96-CF-1249 Honorable George Bridges, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

PUBLISHED

 Defendant, Carlos Arroyo, was convicted of first-degree murder and was subsequently sentenced to 60 years' imprisonment. This court reversed that conviction and remanded the cause for a new trial. People v. Arroyo, No. 2--97--0158 (1998) (unpublished order under Supreme Court Rule 23(b)). Defendant was retried before a jury, was convicted, and was sentenced to 54 years' imprisonment. Defendant now appeals, alleging that (1) the prosecutor made improper comments during opening statement; (2) the prosecutor made improper comments during closing argument; and (3) defendant was denied the effective assistance of counsel at trial. For the reasons that follow, we reverse the judgment of the circuit court of Lake County and remand for a new trial.

I. FACTS

During the State's opening statement, the prosecutor remarked that Diana Zuniga, an eyewitness who testified at defendant's first trial, was serving a 20-year prison sentence. Following the trial court's sustaining of defendant's objection to that remark, the prosecutor told the jury that Zuniga was convicted of being the getaway driver in this homicide. Defendant objected to the remarks and moved for dismissal or a mistrial. The motions were denied. The propriety of these statements is contested on appeal.

At trial, the State called Kelly Peterson, who testified that on May 7, 1996, she saw a man in a brown jacket walking along Washington Street as she drove home from work. According to Peterson, a man wearing a red, hooded sweatshirt jogged up behind the man in the brown jacket. Peterson looked away and then heard a crash from the direction of the two men. She looked back and saw the man in the red, hooded sweatshirt raise his right arm and fire two or three shots at the man in the brown jacket. Peterson testified that she did not see the shooter's face but that he was about 5 feet 7 inches or 5 feet 8 inches tall, and shorter than the man who was shot.

Angela Demoe testified that she was working at Enterprise Car Rental on Washington Street on May 7, 1996. Shortly after 6:15 p.m., she was pulling out of the Enterprise parking lot in a white Nissan Pathfinder. Demoe noticed two men approaching. One man was wearing a brown jacket and was walking along the curb. The other man was wearing a red sweatshirt and approached at a diagonal, walking fast. As Demoe turned out of the parking lot onto Washington Street, she heard two pops, which she thought were firecrackers. At that point, Demoe looked into her rearview mirror and saw the man in the red sweatshirt heading back in the direction he came from. Demoe saw the man in the red sweatshirt from about 25 feet. At the time, it was still daylight and she made eye contact with him. According to Demoe, the hood of the red sweatshirt was up tightly around the man's face, but she could see his eyebrows, eyes, nose, and mouth for five or six seconds. Demoe said that the man in the brown jacket was taller than the man in the red sweatshirt, who was about 5 feet 3 inches or 5 feet 4 inches tall.

On May 7, 1996, a detective showed Demoe an array of six photographs that did not include defendant's picture. Demoe did not identify the shooter from any of the photographs but did indicate that one individual pictured looked similar to the man in the red sweatshirt. On May 9, 1996, Detective Mark Tkadletz showed Demoe a different array of six photographs that also did not include a picture of defendant. Demoe pointed to the man pictured in the lower left-hand corner of the array and indicated that she was pretty sure that was the man. Later testimony established that she pointed to a picture of Juan Salgado.

On May 13, 1996, Detective Yancey showed Demoe yet another six-photograph array. Demoe identified the man pictured in photograph No. five as the man in the red sweatshirt. Demoe said that the man in photograph No. three was the same man she identified in the photograph array shown to her on May 9, 1996. Demoe also said that the man pictured in photograph No. five was not in the first two arrays that were shown to her. Later testimony established that defendant was the man pictured in photograph No. five and that Juan Salgado was pictured in photograph No. three. In court, Demoe identified defendant as the man she saw in the red sweatshirt on May 7, 1996. On cross-examination, Demoe said that she may have told Detective Tkadletz on May 9, 1996, that she was 98% sure the man pictured in the lower left-hand photograph of the second array was the shooter.

Detective Thomas Luka testified that defendant gave a written statement to him and Detective Yarc on May 11, 1996. The statement consisted of defendant's answers to the detectives' questions. Defendant made no mention of the May 7, 1996, shooting in this statement.

Detective Tkadletz testified that he and Detective Yarc interviewed defendant at 12 noon on May 13, 1996. Just before they interviewed defendant, Detectives Tkadletz and Yarc had obtained a videotaped statement from Juan Salgado indicating that defendant was the shooter. When confronted with that information, defendant became upset, began raising his voice, and called the detectives liars. Detective Tkadletz said that they then showed defendant the videotape of Salgado's statement naming defendant as the shooter. Shortly thereafter, defendant demanded to be put back into his cell.

Sergeant Richard Davis testified that on May 13, 1996, at approximately 2:30 p.m., defendant knocked on his cell door and indicated that he was ready to tell the truth. According to Sergeant Davis, Detectives Tkadletz and Yarc were at a meeting at the State's Attorney's office, so Sergeant Davis and Lieutenant Hendley took a statement from defendant. Sergeant Davis identified the typed statement that defendant gave on May 13, 1996, at 2:40 p.m. This statement was admitted into evidence and was read to the jury as follows:

"I'm not going to lie to you guys anymore. I was with Juan Salgado, we were supposed to be going to pick up my cousin Diane [sic], and we were driving down Washington St. to Greenleaf and Juan saw a guy and said is that Fonzie. I said I don't know. Instead of turning right on Greenleaf he turned left and came up behind him and as we drove by, Juan said ya that's Fonzie we got to take care of him. I said no we have to pick up Diane [sic] at the dentist office.

We drove over to the dentist office where Diane [sic] works on Greenleaf, and we picked up Diane [sic]. I got into the backseat. Juan then drove back to Washington St. and said where did he go, where did he go. * * * Juan drove to Washington and Teske and said where is he, where is he, do you see him.

I didn't see him, then Juan said there he is, and he turned right on Washington and then made a left at the first street. Juan gave me the gun and said you take care of him. I'm going down to 41 and I'll come back around and pick you up on this street.

Juan left and I saw Fonzie coming on Washington. I just stood there and I couldn't do it, so I started walking back up that street toward Grand Ave. Juan had pulled around and I got into the backseat and he said did you hit him. I said no, but I told Juan that there was a police car by Waukegan Tire, so I couldn't. Juan said your [sic] just scared. And he drove back to Washington St. and turned into the next block after we passed Fonzie. Juan said give me the gun I'll do it.

Juan got out of the car and he told Diane [sic] to drive and said go to the next street and turn left and pick me up by the apartments. Diane [sic] and I were in the first driveway on that street across from where they are building that new building. Juan was walking up toward Fonzie and I heard the shots and then saw Fonzie fall. Fonzie then got up and fell again.

Diane [sic] turned into the street by the apartments, and then we saw this lady in a white truck, who we thought was watching Juan, so we made a u-turn on the street and went back to Washington St. and Juan was running through the grass toward the apartments.

We turned right and then turned right on the first street where we first dropped Juan off. We pulled into the same driveway, and then Juan came running up to the car and got in and said I hit him. I knew he hit him, cause I saw Fonzie drop.

Juan said lets [sic] go to Antioch, so we drove over by Wadsworth and got some water for Juan and we drove to Antioch." In this typed statement, defendant also indicated that "Diane [sic]" is his cousin "Diane [sic]" Zuniga, that the gun was a .25-caliber automatic, and that "Fonzie" is Jose Soto.

According to Detective Tkadletz, at about 2:30 p.m. on May 13, 1996, he and Detective Yarc received a phone call at the State's Attorney's office informing them that defendant wanted to make a statement. Detectives Tkadletz and Yarc returned to the Waukegan police station and spoke to defendant at approximately 3:30 p.m. Detective Tkadletz said that they asked defendant to write out in full detail and in his own handwriting the events that he had related to Davis and Hendley. Defendant's handwritten statement was admitted into evidence at trial and was substantially the same account he gave to Sergeant Davis and Lieutenant Hendley. In his handwritten statement, defendant additionally indicated that at Salgado's direction he hid the gun in the basement of the house in which defendant was living in Zion.

Defendant took the detectives to the address in Zion and retrieved the gun. After retrieving the gun, the detectives returned with defendant to the Waukegan police department. Detective Tkadletz said that he and Detective Yarc received information from Detective Yancey that Angela Demoe had identified defendant as the shooter. According to Detective Tkadletz, when defendant was confronted with that information he put his head down and shortly thereafter said the words, "I shot him." At that point defendant told the detectives that it happened the same as the handwritten statement except he was the shooter. The detectives then had defendant go through the whole story again. According to Detective Tkadletz, defendant declined an offer to write out another statement and told them "I just want you guys to put it down and I will sign it." At that point, Detectives Tkadletz and Yarc put together the information defendant provided and typed out defendant's statement. Detective Tkadletz said that, after he typed out the statement, defendant appeared to read it and then signed the statement. Detective Tkadletz identified the statement that he typed out on May 13, 1996, at 6 p.m.; it was admitted into evidence at trial, and reads as follows:

"Juan and I were in his purple Chevy Cavalier. We were going to pick up my cousin, Diana[,] who was working in Park City. Juan was driving and we were going down Washington St. We stopped in at the dentist office and Diana said that she was going to be late. We were hungry so we went to Wendy's in Gurnee. Juan ordered and we went back to the dental office. We were on Washington St., and we saw a guy in a brown jacket walking down the street. Juan looked at me and said, 'That's him!' Juan told me to get out and take care of this. I said no because we had to pick up Diana at the office. Juan then went to the dental office and picked up Diana while I stayed in the car. I jumped into the back and Diana got in the front of the car. We pulled out of the lot and turned left onto Greenleaf St. He went up to [sic] streets and turned left. [H]e said, 'this isn't the road that I want to be on, I need to get on Teske.['] He made a U-turn and turned left onto Greenleaf. He went up to Belvidere and drove east to Teske. He turned left onto Teske and went to Washington St. We saw Fonzie walking and Juan said that you gotta take care of this. Juan said that they, (the gang), would take care of me or my family if I didn't take care of this. Juan dropped me off. I had the .25 cal. gun with me as I got out of the car. I don't know what road we were on. I waited for Fonzie to get there. I just couldn't do it so I walked up towards Grand where Juan said that he would pick me up. When I got in the car he said, [']Did you hit him?['] I said no. I told him that I saw a police car pull into the parking lot of the tire place. Juan told me that I needed to take car [sic] of this and that I knew why. ...


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