Appeal from of Lake County. No. 96-CF-1249 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendant, Carlos Arroyo, was convicted of first-degree murder (720 ILCS 5/9--1 (West 1996)) and was subsequently sentenced to 60 years' imprisonment. This court reversed that conviction and sentence and remanded the cause for a new trial. People v. Arroyo, No. 2--97--0158 (1998) (unpublished order under Supreme Court Rule 23). Defendant was retried before a jury, was convicted, and was sentenced to 54 years' imprisonment. This court reversed defendant's conviction and remanded for new trial in People v. Arroyo, 328 Ill. App. 3d 861 (2002). Our supreme court denied the State's petition for leave to appeal but, under its supervisory authority, directed this court to vacate its opinion and reconsider its judgment in light of the substantial prejudice standard set forth in People v. Williams, 192 Ill. 2d 548 (2000). We now vacate our opinion pursuant to that order and file this opinion in its stead.
After reconsidering our judgment in light of Williams, we now conclude that defendant did not suffer substantial prejudice as a result of the prosecutor's improper comments during opening statement. Having so concluded, it is necessary to address defendant's second and third arguments on appeal. We reject defendant's second and third arguments and, therefore, affirm the judgment of the circuit court of Lake County.
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 motion was 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. 5 as the man in the red sweatshirt. Demoe said that the man in photograph No. 3 was the same man she identified in the photograph array showed to her on May 9, 1996. Demoe also said that the man pictured in photograph No. 5 was not in the first two arrays that were shown to her. Later testimony established that defendant was the man pictured in photograph No. 5 and that Juan Salgado was pictured in photograph No. 3. 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 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
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 Detectives 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 as he described in 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. Juan pulled out onto Washington St., and
turned left. We passed Fonzie and turned left onto the next
street. I got out and waited for Fonzie to pass. Juan said that
he would pick me up on the next street. I got out and started to
walk up behind Fonzie. I was wearing a red hooded sweatshirt and I
pulled the hood over my head as I got closer to him. I cut across
the parking lot and ran up behind Fonzie. That is where I shot
After I shot him I ran back the way I came. I was running
across the parking lot when I saw a white truck. I stopped for a
moment and noticed that Juan had pulled a U-turn and went back out
onto Washington St. I ran through the apartments and over to the
driveway off of the other street where they dropped me off. I ran
up to the car and got in on the passenger side of the car. Juan
was driving and he was driving the whole day. I never saw Diana
driving the car, but she could have switched with him when they
turned around. I got into the car and they backed out of the
driveway. We then drove towards Grand Av. While we were driving I
took off the red sweatshirt. The sweatshirt was thrown out of the
car as we passed some apartments. We then drove to Antioch to see
Robert and Ramon.
Carlos[,] did Diana know what you guys were going to do?
Yeah we told her when she got into the car.
Carlos[,] the gun that was recovered[,] was that the gun that
you used to shoot Jose Soto?
Carlos[,] is there anything else you can add to the statement?
Carlos[,] now is this the truth about what happened.
Yes, I know I lied before, but this is the truth."
Detective Tkadletz further testified that, shortly after signing the statement, defendant began to cry and said that Salgado made him do it. Defendant got down on one knee and asked for help and also asked if he could get probation.
Sergeant Robert Kerkorian testified that in May 1996, he was the supervisor of the Waukegan police department's gang unit. According to Sergeant Kerkorian, Jose Soto was a self-admitted member of the Maniac Latin Disciples street gang, and defendant was a self-admitted member of the Latin Lovers. Sergeant Kerkorian testified that in May 1996, the Latin Lovers were at war with the Maniac Latin Disciples. Sergeant Kerkorian explained that, approximately a year before this shooting, a Maniac Latin Disciple killed a Latin Lover at a party in Chicago. After that, the Latin Lovers and the Maniac Latin Disciples began shooting each other. Also, in September or October 1995, the then-leader of the Latin Lovers, Francisco Aguillar, was shot. According to the Waukegan police department's investigation, Soto was a suspect in the shooting of Aguillar.
The first witness called by the defense was Patrick Fischer, who testified that he was a manager at Enterprise Car Rental on May 7, 1996. Fischer said that he observed a man in a red sweatshirt running eastbound on Washington Street on the day of the shooting. Fischer said the man was a black male approximately 6 feet tall, 180 pounds, and in his late 20s or early 30s. Fischer also said that he had a conversation with Angela Demoe on May 7, 1996, and she told him that she saw the man in the red sweatshirt get into a white Corolla or Corsica.
The defense also called Juan Morales, who testified that he is a member of the Latin Lovers street gang. Morales said that he is a friend of defendant, and his sister has a child by defendant. Morales also said that he is a friend of Juan Salgado. In 1996, Morales was second in command of the Latin Lovers in Waukegan and Morales's cousin, Francisco Aguillar, was the leader. Defendant was also a member of the Latin Lovers in 1996 and went by the name "Mouse" because he was short. In 1996, Juan Salgado ...