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People v. Hernandez

March 29, 2004


[6] Appeal from the Circuit Court of Cook County. No. 98 CR 19948 (02) Honorable Henry R. Simmons, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Gordon

[8]  Following a jury trial, defendant Rafael Hernandez was convicted of first-degree murder and three counts of attempted first-degree murder, and sentenced to concurrent prison terms of 40 and 30 years, respectively. Defendant's conviction was affirmed on direct appeal. People v. Hernandez, No. 1-00-0142 (February 13, 2002) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a pro se post-conviction petition, which was summarily dismissed by the trial court. Defendant now appeals the dismissal of his post-conviction petition, contending that he was rendered ineffective assistance of counsel by his trial attorney's usurpation of defendant's fundamental right to decide whether to testify at trial. For the reasons stated below, we affirm the dismissal of defendant's post-conviction petition.


[10]   Because the facts of this case were set out in detail in our order deciding defendant's direct appeal (Hernandez, slip op. at 2-9), we will only briefly summarize them here.

[11]   At trial, the State presented evidence that defendant, an admitted member of the Latin Kings street gang, approached a car driving through the intersection of Campbell and Balmoral Avenues in Chicago and asked the occupants, Isaac Soberon, Khaled El-Helo, Joe DeClet and Mike Kowalski, whether they were affiliated with a gang. A short while later, defendant's fellow gang member, Anthony Clark, ran to the car from behind some nearby trees and fired at its occupants, killing Soberon. The defense's theory of the case was that defendant was not accountable for Clark's wrongdoing because defendant was not acting in concert with Clark.

[12]   At trial, complainants El-Helo, DeClet and Kowalski testified that on June 25, 1998, at about 2 a.m., they, along with Soberon, were riding in El-Helo's convertible and El-Helo was driving. As they were driving through the intersection of Campbell and Balmoral, defendant and some other men approached the car from behind some trees. Defendant flashed gang signs and yelled, "What's up, folks." DeClet and Kowalski answered that they were not gang-affiliated. Defendant yelled, "We're Kings, we're King love." After El-Helo drove past defendant, the complainants heard several shots fired. DeClet was able to see the shooter, who ran in the direction of the car as he fired. The shooter was not defendant. One of the bullets struck Soberon in the head and he died as a result of the wound. The caliber of the bullet recovered from Soberon matched that of the casings found at the scene of the shooting. The complainants each identified defendant as the person who initially approached the car.

[13]   A few weeks later, defendant was arrested. At the police station, defendant gave a statement to Assistant State's Attorney (ASA) Karen Kerbis, in which he stated that he was a member of the Latin Kings and that, on the night of the offense, he and three other Latin Kings planned to avenge the death of a fellow gang member. Defendant stated that he asked Clark for a gun so that he could spot and shoot some rival gang members, but Clark refused to give it to him. Defendant stated that if he had had the gun, he would have made sure that he shot a rival gang member and not an innocent bystander. Defendant stated that he was standing on the corner of Campbell and Balmoral when he saw a car turn onto Balmoral. Defendant approached the car and asked whether the occupants were affiliated with a gang. None of the occupants showed signs of gang membership. The car proceeded down Balmoral to the alley and turned left. A short while later, Clark fired at the car.

[14]   A Chicago police department gangs investigator testified that when a Latin King is killed by a member of a rival gang, the Latin Kings would retaliate by going out and killing a member of the rival gang. The investigator averred that defendant's tattoos identified him as a Latin King, and testified that the intersection where the shooting took place was in rival gang territory.

[15]   Defendant took the stand in his own behalf in his case in chief. He admitted to being a member of the Latin Kings and stated that he had been a member for about four years. Defendant testified that he was standing at the corner of Campbell and Balmoral on the date and time in question. He saw a car coming towards him, and as the car came by he yelled, "What's up, folks." He stated that a few seconds after the car drove off, he heard someone shout, "King love," and then gunshots. He ran away at the sound of gunfire. Defendant claimed that he did not agree to shoot anyone that day, did not handle a gun at that time and did not know that Clark had a gun. Defendant also testified that his post-arrest statement was a product of police coercion, consisting of physical abuse, threats and promises that he would be able to go home if he confessed to the offense. *fn1

[16]   Rebuttal witness Detective Mannion testified that defendant was read his Miranda rights and was not coerced by police during interrogation. ASA Kerbis also testified in rebuttal and stated that she read defendant his Miranda rights prior to taking his written statement and gave him an opportunity to discuss the treatment he received while in custody, outside the presence of the police. She also contradicted defendant's testimony that he told her he had been mistreated.

[17]   The jury found defendant guilty of first-degree murder and three counts of attempted first-degree murder. He was sentenced to a term of 40 years for first-degree murder and 30 years for each charge of attempted first-degree murder, all sentences to run concurrently with one another.

[18]   On direct appeal, defendant argued that the trial court should have excluded unauthenticated photographs and improper hearsay testimony, that the State made improper statements during closing argument, and that his sentence was excessive. This court affirmed his conviction and sentence in an unpublished opinion. Hernandez, slip op. at 25-26. On June 30, 2002, the Illinois Supreme Court denied defendant's petition for leave to appeal.

[19]   On December 21, 2003, defendant filed a pro se petition for post-conviction relief, alleging, among other claims, that his trial attorney was ineffective for depriving him of his right to determine for himself whether he would testify at trial. In support of the petition, defendant provided his own affidavit, which states in relevant part:

[20]   "3. That my attorney SPD Anthony Thomas told me prior to

[21]   trial that the process would allow me the right to present a defense against the charges of first degree murder, that the case rested ...

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