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People v. Gone

August 13, 2007


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 00-CF-1008 Honorable Richard Schoenstedt, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

Published opinion

A jury found defendant Francisco J. Goné guilty of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 2000)); and, in a simultaneous bench trial, the court found him guilty of unlawful possession of a weapon and unlawful possession of ammunition by a felon (720 ILCS 5/24--1.1(a) (West 2000)). Defendant was sentenced to concurrent prison terms of six years for aggravated discharge and four years each for the unlawful possession convictions. Defendant appeals, arguing that (1) he was denied his right to due process when he was required to wear a stun belt at trial without a prior "manifest necessity" hearing; and (2) plain error resulted when the court misinstructed the jury as to how it was to consider identification evidence. We affirm.


Defendant was charged in six counts with offenses arising out of a drive-by shooting committed in Lockport, Illinois, on the evening of July 3, 2000. Prior to trial, the State nolle prossed a charge of aggravated unlawful use of a weapon in street-gang activity, and defendant waived his right to a jury on counts charging unlawful possession of a weapon and ammunition by a felon. On September 8, 2003, the cause proceeded to a bench trial on the possession charges, and a simultaneous jury trial on aggravated discharge of a firearm and two counts of aggravated battery with a firearm.

At trial, witnesses for the State identified defendant as the front-seat passenger of a maroon Chevrolet Beretta from which gunshot was fired at a group of young men gathered outside of Andy Cerros' house. Cerros' girlfriend, Lisa Tarnowski, had just stepped out of the front door of the house when she saw the Chevrolet pull up in front of the garage where the young men were working on a car. She heard five or six shots, and then the Beretta proceeded by the house. Tarnowski said it was still light out. As she approached the sidewalk in front of the house, the passenger looked directly at her. She did not know him. She described the passenger as a male about 20 years old with short hair. On July 11, 2000, she viewed a photographic lineup and identified defendant as the man she had seen. Tarnowski also made an in-court identification.

Cerros testified that he was having a beer with friends after working on his friend's car when the maroon Beretta drove up and opened fire on them. He saw the flash of gunshot from the front passenger side of the car. He said five or six shots were fired, and some of them struck his cousin's car. He noted that both the passenger and the driver were male Hispanics. Later that evening, Cerros viewed a lineup. He saw a person that looked just like the front-seat passenger, but he did not positively identify him. On July 11, Cerros positively identified defendant from a photo array. Cerros also made an in-court identification of defendant as the front-seat passenger of the Beretta.

Cerros' cousin, George Torres, testified that he saw the maroon Beretta approaching Cerros' house as he was getting ready to leave. He heard five shots fired from the car and saw that there were two persons in it. Torres jumped into his car and pursued the Beretta. When the Beretta stopped at a stop sign, Torres noted that the passenger wore his hair in a "shag," with a tail in the back. The Beretta then sped off, and Torres gave up the chase. Torres later found three bullet holes in his car.

Curtis Cooper testified that he was standing in the driveway at Cerros' residence with Cerros and his friends in the early evening of July 3, 2000, when a red Chevrolet Beretta drove up and shots were fired from the passenger side. He said the car was proceeding slowly by the house, and the two occupants of the car appeared to be male Hispanic, white or light-skinned African-American. Immediately after the shooting, Cooper noted that he had been hit in the right index finger. He jumped into his car to give chase; however, he saw that he was losing a lot of blood and drove himself to the hospital instead. A bullet was removed from his finger the following morning.

Cesar Ramirez testified that he was having a beer in the driveway of Cerros' house the evening of July 3, 2000, after his friends replaced the brakes on his car. When he heard gunshots, he threw himself to the ground. He said he heard about six shots, but he did not see where they came from. He was grazed on the right side of his body by a bullet, and he found a large bullet hole in the trunk of his car.

Angel Marcano testified that he was driving his mother's red Beretta on the evening of July 3, 2000. Between 8 and 11:30 p.m., he was in Lockport visiting his friends, Eddie Solis and defendant, at Solis' home. When Marcano left with defendant, defendant suggested they drive by Cerros' house to yell gang slogans at him if he was there. Marcano said he slowed the car as they approached Cerros' house, and then defendant pulled out a handgun and started firing out the passenger side window at the men standing there. Marcano said he was a member of the Two-Six street gang on the day of the shooting. He was arrested for the offense on July 10 and subsequently pleaded guilty to aggravated discharge of a firearm for his part in the incident.

The State's witnesses identified Marcano's vehicle as the maroon or red Beretta from which the shots were fired. Jeremy McElroy, another member of the Two-Six gang in July 2000, testified that he told the police in July 2001 that defendant fired a .380-caliber automatic during another drive-by shooting on July 9. Forensic evidence established that spent .380-caliber automatic projectiles recovered from the July 3 incident were fired by the same weapon used in the July 9 shooting.

After the State rested, defendant presented an alibi defense. Defendant's fiancée, Carissa White, testified that defendant and his friends were at her mother's house for a birthday party for Talesa, their two-year-old daughter, the evening of July 3, 2000. After the party, around 10 p.m., she, defendant and Talesa left her mother's house and drove to defendant's mother's house, where they spent the night. Carissa said they rented chairs for the guests from Joliet Rental, and she thought they returned them a few days later.

Corroborating testimony was provided by defendant's mother, Flor Martinez; Carissa's mother, Percie Jean White; Carissa's sisters, Charlene and Kimberly Thigpen; defendant's friend, Jose Ortiz; and Carissa's friends, Keisha and Kristal Weeks. Carissa's mother testified that defendant was wearing a "shag" hairstyle--short with a little tail--on the day of the party. Kimberly testified that Jeremy McElroy, who also attended the party on July 3, wore the "shag" hairstyle as well. She said it was the trend at the time. On cross-examination, Kimberly admitted that she was interviewed by the police on July 14, 2000, regarding Carissa's whereabouts. She did not recall telling the investigator that Talesa's birthday party was held on July 2.

In rebuttal, Will County sheriff's investigator Bradley Wachtl testified that, when he interviewed Kimberly on July 14, 2000, she told him that the birthday party at her mother's house was held on July 2, 2000. The State also introduced Malissa Kanive, manager of the equipment rental business from which defendant had rented the chairs for Talesa's birthday party. Kanive testified that the company's records showed that defendant picked up the chairs at 12:53 p.m. on July 1, 2000, and returned them at 12:45 p.m. on July 3.

In closing arguments, the prosecutor argued that Lisa Tarnowski clearly and unequivocally identified defendant as the July 3, 2000, shooter. He stated,

"When you weigh the identification testimony of a witness, you should consider all of the facts and circumstances in evidence. That means when you look at the identification, you've got to look at everything and not just the parts, including but not limited to the following: the opportunity the witness had to view the offender at the time of the offense; the witness's degree of attention at the time of the offense; the witness's earlier description of the offender; the level of certainty shown by a witness when confronting the defendant."

Following their deliberations, the jury found defendant guilty of aggravated discharge of a firearm, and not guilty of two counts of aggravated battery with a firearm. The court found defendant guilty of unlawful use of a weapon and ammunition by a felon.

Prior to sentencing, defendant moved for a new trial on the ground that his right to due process of law was violated, because he was forced to wear a stun belt and the court had not taken affirmative action to consider whether there was a manifest need for the restraint. At the hearing on the motion, defendant's attorneys testified that the restraint around defendant's waist created an obvious, block-like protrusion under his shirt. The State presented security officers who testified that it was a standard policy in the Will County courthouse to place stun belts around defendants during felony trials. However, to the witnesses' knowledge, no stun belt had ever been activated while it was being worn by a defendant.

Before ruling on defendant's motion, the court made note of certain observations that it had made during defendant's trial: defendant was charged with crimes of violence, and he had a prior felony conviction involving a weapon; he had absented himself from the state of Illinois for more than two years following the shooting; he was young and appeared physically fit; the offenses were possibly related to gang rivalry; witnesses testified in court wearing their gang colors; and, ...

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