Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
MODIFIED UPON DENIAL OF REHEARING NOVEMBER 14, 2005
Following a jury trial, defendant Efren Melchor was found guilty of first degree murder and sentenced to 40 years' imprisonment. On appeal, defendant contends that: (1) the admission of a deceased eyewitness' testimony under the former testimony exception to the hearsay rule in section 115-10.4 of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10.4 (West 2002)) violated his confrontation rights pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004); (2) the admission of the deceased eyewitness' testimony was erroneous because it lacked sufficient guarantees of trustworthiness; (3) the trial court erred in admitting testimony from a police officer confirming the deceased witness' identification of defendant in a lineup in violation of section 115-12 of the Code (725 ILCS 5/115-12 (West 2002)) and in violation of Crawford; (4) the trial court denied defendant his right to present a defense by excluding testimony from his brother regarding threats made against his brother and himself; (5) the trial court erred in admitting gang evidence testimony; (6) the prosecutor engaged in misconduct in closing argument by suggesting defendant fabricated a defense and in misstating evidence regarding the lineup; (7) the trial court's 40-year sentence was excessive; and (8) the trial court failed to properly admonish defendant pursuant to Supreme Court Rule 605(a). For the reasons set forth below, we reverse defendant's conviction and vacate his sentence and remand.
On April 30, 1990, Steven Botello was shot to death at 2624 West Fullerton in Chicago. Defendant and co-defendant, Ancermo Paredes, were arrested on May 6 and were identified in a lineup as being involved in the shooting. Thereafter, both were indicted on two counts of murder. After being released on bond, defendant failed to appear in court and, on October 2, his bond was forfeited and a warrant for his arrest was issued. Defendant remained a fugitive for the next 10 years.On May 15, 1991, co-defendant's bench trial began. At this trial, Luis Ortiz, then 16 years old, the sole eyewitness to the shooting testified, implicating both co-defendant and defendant. On May 20, co-defendant was found not guilty. On September 11, 1998, Ortiz died as a result of a drug overdose. In addition, at some point, co-defendant was deported to Mexico.
On October 15, 2000, defendant was again arrested. Prior to defendant's trial, the State indicated its intent to use Ortiz and co-defendant's testimony from co-defendant's trial because both were unavailable. Defendant filed a motion to preclude the State from using their testimony, arguing that its use would violate his confrontation rights and that the testimony, particularly Ortiz's, did not bear sufficient guarantees of trustworthiness. After a hearing, at which the State confirmed Ortiz was the sole eyewitness to the shooting, the trial court concluded that his testimony was "more probative" on the question of whether or not defendant was present at the scene of the shooting and whether he was the shooter. The court then noted that while Ortiz's testimony was given under oath at a hearing, there had been no cross-examination by defendant or anyone on his behalf, but only on behalf of co-defendant. Despite this, the court concluded that Ortiz's testimony was trustworthy and there were "equivalent guarantees of trustworthiness" to admit it. However, the court denied the State's request to use co-defendant's prior testimony.
Defendant's jury trial began on March 18, 2003. Julio Diaz, who was 30 years old at the time of defendant's trial, testified that on April 29, 1990, from approximately 9 p.m. to midnight, he was playing basketball in Haas Park at Fullerton and Washtenaw with Ortiz, Botello, and "Tootie." According to Diaz, the group shared a quart of beer. At approximately 11:30 p.m., the group left the park and was walking down Fullerton to get more beer. At this time, they saw four Hispanics coming in their direction on the same side of the street, none of whom Diaz recognized. Tootie said he was going to "mess with" them, to which Diaz responded there was no need for that. When the Hispanics were near Diaz's group, Tootie made a motion like he was going to hit them in the groin or stomach. According to Diaz, the Mexicans then crossed the street and started swearing at Diaz's group in Spanish. Botello said "let's fight," so Diaz's group, with the exception of Tootie, who ran away, walked across the street. Diaz further stated that the Mexicans were throwing bottles and bricks at his group, his group ran toward them, and a "free for all" fistfight began. After approximately 10 minutes, the fight broke up because Botello yelled that the law was coming. Just prior to this, Jamie Figueroa (also deceased at the time of defendant's trial) and Mario Lopez had joined the fight.
Diaz also testified that he and Figueroa hid in a viaduct for a few minutes after the fight broke up and then went to a pay phone. At this time, Ortiz and Botello were also there. The group then walked to Fullerton and California because Botello wanted to see his daughter. At this intersection, there was a Shell and Amoco gas station on either corner. Diaz walked toward the Shell station to say hello to someone he knew. Approximately 10 minutes later, Botello returned. According to Diaz, as Botello was walking toward the station, Diaz saw a two-door gray Toyota hatchback attempt to hit Botello. Diaz also saw four individuals in the car and recognized as least one of them as one of the guys his group had been fighting with earlier. *fn1 His group then started walking eastbound on Fullerton toward "Bunkie's Tavern." Diaz saw "Flash," whom he spoke with for a few minutes, and then he went to the Goethe School playground to tell Flash's girlfriend that Flash was on Fullerton. While talking to this girl, Diaz heard two sounds like firecrackers. According to Diaz, he got on a bike and rode toward Fullerton. He saw a squad car and Botello on the ground. It was his belief that the cop had hit Botello. Diaz then rode to the Amoco station, got two hotdogs, and ate one of them. He got back on the bike and rode eastbound on Fullerton. Botello was still on the street and, at this time, Diaz found out that Botello had been shot.
Diaz further testified that the guy he recognized in the car whom he had been fighting with was co-defendant. Defense counsel then requested a sidebar, at which time he asked to inquire of Diaz about his gang affiliation. The court indicated that counsel could ask Diaz only if he was a gang member and, if so, which one. The State, upon resuming questioning of Diaz, presumably in anticipation of defense counsel's questions, asked him whether he was in a gang, to which he responded in the affirmative, stating he was a member of the Latin Lovers. Diaz further stated that Ortiz, Botello, Figueroa, Lopez, and Tootie were also in the same gang. Diaz also stated that he knew the four Mexicans were not in a gang because "you could tell," and that the fight did not start as a result of gang rivalry, but because Botello opened his mouth.
On cross-examination, Diaz testified that he was fighting with defendant. He then said he was fighting with the individual shown in a photograph (co-defendant), who was the individual he identified in a lineup. Diaz then again stated he had fought with defendant and, upon viewing him in court, stated defendant looked different now. *fn2 Diaz then admitted that he never observed Botello's shooter.
Christopher Donnelly, the assistant State's Attorney who was responsible for trying co-defendant in 1991, read Ortiz's testimony from co-defendant's trial. Ortiz testified that he had been friends with Botello and Diaz for 10 years. On April 29, 1990, Ortiz was with Botello, Diaz, and Tootie at Harris Park, located at Fullerton and Fairfield, playing basketball. *fn3 Ortiz's testimony regarding the fight and attempted hit-and-run was basically consistent with Diaz's testimony. Ortiz, too, stated there were four individuals in the car and that he saw the faces of two individuals in the back seat. Ortiz identified co-defendant as one of the individuals he saw and as one of the individuals he had seen earlier that night in the fight. He further stated that he saw the shooter (however, he did not identify who this was at co-defendant's trial), first stating the shooter was in the driver's side rear seat and then stating he was in the front passenger seat.
Ortiz and his group then walked eastbound down Fullerton. Ortiz first said the group was going to a park and then said, "No," they were "just gonna walk around." According to Ortiz, when the group was in front of "Bonkey's Tavern," he saw Flash, Wilfredo Hernandez, and Shorty, whom he spoke with. Ortiz stated that Diaz left on a bike to go to Gaither Park. Botello also rode off on a bike he got from Shorty because he had left his wallet at the park, heading westbound on Fullerton toward California. Ortiz observed Botello looking for his wallet, when a little gray car pulled in the parking lot by the park. Ortiz first stated he did not recognize the car and then stated he did--it was the same car that tried to run Botello over. According to Ortiz, the passenger side door opened, a guy got out, reached over the roof of the car, and shot Botello. The guy then got back in the car and it drove off.Ortiz further testified that on May 6, 1990, he went to Area 5 and viewed a lineup out of which he identified two individuals. Ortiz stated that he identified the first individual, co-defendant, as one of the individuals he had been fighting with and the second individual, defendant, as the shooter, but not someone who had been involved in the fight. Ortiz further stated that he had first seen these two individuals in the parking lot at the Shell station in the gray Toyota. Specifically, he stated that co-defendant was the back seat passenger and defendant was the front seat passenger.
On cross-examination, Ortiz stated that, with respect to the shooting, he was approximately 100 feet from the car, then stated it was 25 feet, and then 5 feet. According to Ortiz, co-defendant was behind the passenger at the time of the shooting and he denied telling the police co-defendant was behind the driver. Ortiz further stated that he did not observe the driver, but stated the driver was not one of the individuals involved in the fight.
Thereafter, the State presented the testimony of the two detectives involved in defendant's initial arrest.
[Nonpublishable material under Supreme Court Rule 23 removed here].
The State then rested. Defendant moved for a judgment of acquittal, which the trial court denied. Defendant then offered testimony on his own behalf, including his own testimony.
[Nonpublishable material under Supreme Court Rule 23 removed here]. After defendant offered his evidence, the State called the two detectives involved in defendant's initial arrest in rebuttal.
[Nonpublishable material under Supreme Court Rule 23 removed here].
After the State and defendant gave their closing arguments, the case was submitted to the jury. During the course of its deliberations, the jury sent several notes to the court. One inquired as to whether Ortiz testified through a translator from Spanish to English. It was advised that he did not. The jury also requested to review the transcripts of Detective Guevara, Ortiz, and Diaz's testimony. With respect to Guevara's testimony, the jury indicated that it wanted to verify whether he had asked defendant if he was a gang member and that defendant's response was yes, he was a member of the Pachuros gang. The jury was provided with the transcripts of Ortiz and Diaz's testimony, but since Guevara's was not available, it was simply advised that "[t]hat was the testimony of Detective Guevara."
On March 21, the jury found defendant guilty of murder. On April 17, defendant filed a motion for a new trial, arguing, inter alia, that the trial court erred in admitting Ortiz's testimony, erred in refusing to allow defendant to impeach Ortiz with a robbery charge that was pending at the time of co-defendant's trial, and erred in refusing to allow defendant to impeach Ortiz with a 1994 conviction for armed robbery. On April 30, during a hearing on defendant's motion, he orally moved to amend the motion to include as an error the trial court's refusal to allow his brother to testify. The trial court denied defendant's motion for a new trial. In reaching its decision, the trial court noted that if the only evidence of defendant's guilt had been Ortiz's testimony, the ...