Appeal from the Circuit Court of Cook County. Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman delivered the modified opinion of the court upon denial of rehearing
Following a bench trial, defendant, Johnny Martinez, was convicted of first degree murder and sentenced to 25 years' incarceration for his participation in the fatal gang-related group beating of the victim, Daniel Garcia. On appeal, defendant raises several issues, including whether: (1) the State proved him guilty of first degree murder beyond a reasonable doubt; (2) the circuit court erred in admitting in evidence a key eyewitness' prior inconsistent statement; (3) the court erred in admitting in evidence his written statement; and (4) he received effective assistance of counsel.
Defendant proceeded by way of a bench trial.*fn1 At trial, the following evidence was heard by the court. Daniel Garcia died after being beaten by defendant, his co-defendants, and others. One or two days before Garcia was beaten, Manuel Rodriguez had driven Garcia to the area of Armitage Avenue and Whipple Street in order to buy narcotics. Garcia got out of Manuel's car, and proceeded into an alley, just south of Armitage and west of Whipple, forming a "T." A parking lot adjoined the alley. Manuel saw Garcia go into the alley, and then come running out. Garcia told Manuel to open the door of the car and then said, "[s]tep on it!" The two sped away from the alley. Garcia was now holding a bag of cocaine.
On October 12, 1998, Garcia returned to the area near Whipple and Armitage with Jesus Fuentes and Esteban Rodriguez, who dropped him close to the same alley and waited. Garcia got out of the van. Neither watched Garcia when he left the van. Fuentes drove the van around the block of Whipple and Armitage after waiting for about 15 minutes, looking for Garcia. Fuentes drove around the block a second time, then to an alley at Whipple and Armitage where he saw a group of five or six men who looked like they were pushing or shoving each other further down the alley. The alley was lit by a street light and Fuentes was able to see some of the young men's faces. Rodriguez also saw the group of young men. Rodriguez made an in-court identification of defendant and his two co-defendants as three of the people he saw on the night of October 12, 1998. Defendant was one of the people who Rodriguez saw pushing and kicking in the alley. On their third drive around the block, Rodriguez and Fuentes went down the alley where they had seen the group of men, and found Garcia lying in a parking lot at the edge of the alley beaten and covered in blood, in the same spot where Fuentes and Rodriguez had seen the group of men. Garcia was unconscious. Rodriguez tried to lift Garcia into the van, but he was too heavy. Fuentes and Rodriguez flagged down a police car, but were unable to communicate with the officers because Fuentes and Rodriguez only spoke Spanish and the officers could not understand them. Rodriguez and Fuentes then went to tell Garcia's family what had happened.
Melloney Parker, on October 12, 1998, lived directly across the alley from the place where Garcia was beaten. She was awakened at 1:55 a.m., looked out of the front window of her third floor apartment, and saw six or seven young men in various places across the alley. They appeared to be involved in drug transactions. Parker saw Garcia with codefenedant Tinajero and heard Tinajero say, "[w]here's my money?" and, "[f]uck that. We are Latin Kings. Fuck you, motherfucker." As he said this, Tinajero hit Garcia.
Defendant's statement averred that he heard a commotion coming from the alley, saw Garcia lying on the pavement with co-defendants standing around him, and was told that Garcia was a member of a rival gang, the Gangster Disciples. Parker saw defendant punch Garcia while he was on the ground, and defendant admitted that he kicked Garcia hard in the ribs because Garcia was from a rival gang. Defendant stated that he turned Garcia over with his foot, and noticed that Garcia was having a hard time breathing, his face was bloody and he was gasping for breath. Defendant turned, walked away and went home to sleep.
During the beating, Parker could not see the faces of the men who were hitting Garcia. A tree outside her window did not obscure Parker's view of the events in the alley. Everyone she saw that night, including defendant, hit Garcia at some time during the beating. After the beating, all of the men including defendant walked out of the alley. Shortly thereafter, Tinajero walked back and continued to stomp on Garcia and, afterwards, got into a silver-gray car and also left the scene.
Officer Jesus Sanchez received a call of a man down at 1:50 a.m., October 12, 1998, went to the alley behind 1946 North Whipple, and saw a person lying on the ground 20 yards from the mouth of the alley. The person was lying behind a gray van that Sanchez had to walk past to see the victim fully, later identified as Garcia. At first, the officer thought Garcia was merely intoxicated, then noticed he was the victim of a battery, with blood pouring out of his face onto the ground. The officer could see Garcia's injuries because the alley was lit by a street light. Garcia was motionless and did not respond to verbal communication. Sanchez called for an ambulance to take Garcia to the hospital. There he learned that Garcia's injuries included fractured skull at the base on both the right and left sides, and his left temple was fractured. It was unclear how many times he had been struck. Garcia never regained consciousness; stayed in the hospital for two months; was removed to a nursing home; returned to the hospital on December 10, 1998, and died. The medical examiner determined that Garcia died of cranial cerebral injuries due to blunt trauma.
On December 28, 1998, Margarita Casiano was at the 14th District Police Station on an unrelated matter and spoke with an investigator. Casiano had been in the alley at Armitage and Whipple on the 13th or 14th of October 1998 and had witnessed defendant, co-defendants and one other man talking to each other and laughing. After telling the investigator what she had seen and heard, Casiano met with Detective Raynaldo Guevara on January 22, 1999, and identified a photograph of co-defendant Kelly. During trial, Casiano testified that she was familiar with all three defendants and identified each in court.
On January 24, 1999, Detective Guevara went to the home of Parker and showed her six photographs. Parker was able to pick Tinajero out of the photo array. On February 8, 1999, Detective Guevara took Parker to Area Five Headquarters. There she viewed a lineup and picked out defendant and Tinajero. After the lineup, Parker spoke to Assistant State's Attorney (ASA) Jake Rubinstein and gave a statement. Although she was not sure of the events during trial, she was certain of her identification of defendant and of the veracity of the statement she had given to Rubinstein. At trial, Parker stated that she remembered maybe 50% of the event, but had been certain of the events described when she gave her statement.
Rodriguez, one of Garcia's companions on the night of the beating, viewed a lineup of 12 men on February 8, 1999, from which he identified the three defendants. Detective Guevara was in the room with him. Rodriguez had spoken with Guevara before the lineup. Rodriguez did not remember a time when he told Guevara that he had forgotten to tell the detective a number of details about the crime. In Rodriguez's first statement to Guevara on February 4, 1999, he reported that people were throwing bottles at the van. Rodriguez told Guevara that he had forgotten to tell him earlier that he had seen people in the alley.
Fuentes, Garcia's other companion that night, viewed a lineup on February 23, 1999, and picked out the three defendants. Fuentes had spoken to Detective Guevara sometime between the beating and the lineup but did not remember the day. At trial, Fuentes became confused regarding when he had spoken to the police, which photographs they had shown him, and who was with him when he identified defendants from the lineup. Fuentes never gave a description of the people that he saw. The State asserted that Fuentes had seen some photographs before the lineup although Fuentes testified on cross-examination that he had not.
ASA Rubinstein took Parker's statement on February 8, 1999, and took defendant's statement the next day. Rubinstein told defendant that he was an attorney, but not defendant's attorney, nor was he an attorney for any of the co-defendants. He informed defendant of his constitutional rights, which defendant indicated he understood and wished to give a statement. The first conversation lasted for about 45 minutes. Defendant agreed to give a handwritten statement; however, the first paragraph has a pre-printed portion with the constitutional rights written out. Rubinstein had defendant read the paragraph aloud and then had defendant and Detective Troche, who was also present, sign underneath the paragraph. Defendant was sitting right next to Rubinstein so that defendant could read along as the statement was being written. Corrections were made in the statement and initialed by Rubinstein, defendant and Troche. After reading through the statement, Rubinstein, Troche and defendant signed each page.
Once everything but the last paragraph had been written, ASA Rubinstein had defendant read a portion of the statement aloud. Defendant identified some photographs, which were attached to the statement. After the statement had been read through, a paragraph was added documenting the reading through of the statement and the making of corrections. Afterwards, all three signed this paragraph as well. When defendant was alone with Rubinstein he stated that he was feeling well and had been treated fine, had been given food to eat, and had been able to use the restroom whenever he needed to do so. At the very end of the interview, a Polaroid photograph was taken of defendant. Rubinstein, Troche and defendant each signed the photograph and it became an exhibit to the statement. Excerpts from the statement are reproduced in an Appendix located at the end of this opinion, including an admission that defendant kicked Garcia twice as Garcia was lying on the pavement. Appendix at A4.
Defendant was arrested on February 7, 1999, and the statement was taken on February 9, 1999. ASA Rubinstein requested an extended investigative hold on defendant. He was aware that detectives had spoken to defendant before he arrived. Neither Rubinstein nor the detectives told defendant that he was wanted only as a witness. Defendant's statement was received in evidence. The State rested. Defendant's motion for a finding was denied.
Defendant testified in his own defense. He was 21 years-old and had three children. He was arrested on February 7, 1999, and held for two days with nothing substantial to eat or drink. The detectives were aggressive and yelled at him. He tried to sleep during the two days, but someone consistently came in and woke him up. Defendant testified that he was on Whipple Street on October 12, 1998, but that he stopped at a girl's house halfway up the block. He started walking toward the noise that he heard coming from the alley. In the alley he saw Tinajero walking away from Garcia, who was lying down behind a silver van. He knew what had happened in the alley because he had heard fighting. He nudged Garcia with his foot and turned him over. He noticed Garcia was having a hard time breathing so he decided to flee. Defendant denied telling ASA Rubinstein that he gave the victim a hard kick, and stated he never punched Garcia. Detective Troche promised that if he just signed the papers that were going to be brought to him by the ASA he could go home. The ASA was not in the room when the detective told him this. He signed the statement without reading it because he figured that after he told them he had not done anything, they were going to use him only as a witness against Tinajero.
On cross-examination, defendant admitted that he signed each page of the six-page statement, that it was his handwriting under the constitutional rights section, that he initialed a change that was made on the first page and initialed a correction on the second page of the statement. He claimed he cannot read English very well. The statement was entirely written up before he ever saw it. The ASA just walked into the room and asked him to sign the statement. Defendant admitted, however, that he gave the ASA specific information about his date of birth, high school education, address, and family information. Defendant also admitted that information about him hanging out on the 1900 block of Whipple was true, as was the specific information contained in his statement about his gang affiliation and tattoos, but the ASA had put this information in his own words. He signed the photograph of Tinajero during the taking of the statement; the photograph was presented to him during the interview; and he had known Tinajero for four or five years. Defendant claimed that Kelly was not present on the night of the beating and that he had only seen Tinajero. He had known Kelly for five or six years and knew that the picture defendant signed during the statement was Kelly. He admitted that he told ASA Rubinstein specific information about another Latin King, Angel Serrano, and that this information was correct in the statement.
Defendant admitted that he told ASA Rubinstein that he heard voices and saw a guy lying face down on the pavement. Defendant signed each page of the statement and all the photographs, but did so without reading the pages or examining the photographs. Defendant claimed that threats or promises were made that if he signed the statement, he would be used only as a witness. Defendant testified that he was not allowed to sleep the entire time he was at the police station because people kept coming in every ten to fifteen minutes. Two of the people who came in were Detectives Troche and Guevara; he could not name any of the other people who he claimed disturbed him. The defense rested.
Defendant was found guilty of first degree murder and aggravated battery. The circuit court took into account the inconsistencies in the testimony of Fuentes and Rodriguez, and based its findings on the testimony of Parker. The court stated: "I'm mindful that at trial Miss Parker was not certain about the details of the date in question. She was certain and unequivocal that her recollection which was reduced to writing was an accurate one." The court pointed out her position in relation to the beating and her willingness to admit that she did not fully remember details of an incident that had happened years earlier.
Defendant moved for a new trial at the sentencing hearing, claiming that Parker had a warrant out for her arrest on an unrelated matter which was used to pressure her to participate. Although defendant argued that this was not brought out at trial, defense counsel admitted that he knew of the information prior to trial and that he had a copy of the witness' record.
Parker was allowed to testify at the sentencing hearing over the State's objection. She had an outstanding warrant for possession of stolen property when the police were investigating this case. The police informed her of the warrant when they came to her door months later. Detective Guevara took Parker to the police station and interviewed her there. She did not know whether the door to the room where she was taken was locked. She was not told that she was under arrest for the charge related to the warrant. Guevara told her the warrant would be quashed if she would help the detectives identify the people from the night of the incident. Parker identified defendant, basing her identification on what she saw on the night of the murder and not on the fact that she was ...