Appeal from the Circuit Court of Cook County. No. 90 CR 12896. Honorable Fred G. Suria, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
Defendant Efren Melchor was convicted after a jury trial of first degree murder and sentenced to 40 years' imprisonment. On appeal, this court reversed his conviction, holding that defendant's sixth amendment right to confrontation was violated when the trial court admitted the former testimony of Luis Ortiz, who was the sole eyewitness to identify defendant as the shooter. Ortiz had previously testified about the murder at the trial of a co-defendant but had died prior to defendant's trial. People v. Melchor, 362 Ill. App. 3d 335 (2005) (unpublished in part pursuant to Supreme Court Rule 23).
The Illinois Supreme Court vacated the judgment of the appellate court on the ground that the appellate court should have first considered the non-constitutional issues before proceeding to rule on the constitutional one. People v. Melchor, 226 Ill. 2d 24, 34-35 (2007), citing In re E.H., 224 Ill. 2d 172, 178 (2006). The supreme court remanded the case to the appellate court with instructions that this court answer two questions. Melchor, 226 Ill. 2d at 34-35. First, this court must determine "whether the trial court erred in ruling that Ortiz's testimony was admissible pursuant to section 115-10.4 of the Code of Criminal Procedure (725 ILCS 5/115-10.4 (West 2004))." Melchor, 226 Ill. 2d at 35. Second, "[i]f the trial court's evidentiary ruling was erroneous, the next question is whether the error was harmless." Melchor, 226 Ill. 2d at 35. The supreme court instructed that "[o]nly if the trial court's section 115-10.4 ruling was not erroneous, or was erroneous but harmless as an evidentiary matter, should the appellate court turn to the constitutional challenge." Melchor, 226 Ill. 2d at 35.
On April 30, 1990, Steven Botello (the victim) was shot to death at 2624 West Fullerton in Chicago. On May 6, 1990, defendant and co-defendant Ancermo Paredes were arrested for the murder and were identified in a lineup as being involved in the shooting. Both were later indicted on two counts of murder. On May 15, 1990, defendant was released on bond and then failed to appear on several subsequent court dates. On October 2, 1990, 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, the bench trial of the co-defendant began. The witnesses included the co-defendant, who testified on his own behalf, and Luis Ortiz, who was the sole eyewitness to the shooting and 16 years old at the time of the shooting. Ortiz's testimony implicated both the co-defendant and defendant. On May 20, the trial court found co-defendant not guilty, and he was subsequently deported to Mexico. On September 11, 1998, Ortiz died as a result of a drug overdose.
On October 15, 2000, defendant was again arrested. Prior to defendant's trial the State indicated its intent to use Ortiz's and co-defendant's testimony from co-defendant's trial because both were unavailable. Defendant moved to bar the State from using their testimony, claiming that their use would violate his confrontation rights and that the prior testimony, particularly that of Ortiz, did not bear sufficient guarantees of trustworthiness.
After a hearing, at which the State confirmed that Ortiz was the sole eyewitness to the shooting, the trial court denied the defendant's motion to bar and found Ortiz's prior testimony admissible pursuant to section 115-10.4 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.4 (West 2004)). However, the trial court denied the State's request to use the 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 a.m. to midnight, he was playing basketball in Haas Park at Fullerton and Washentaw Avenues with Ortiz, the victim and "Tootie." According to Diaz, the group shared a quart of beer.
Dias testified that, at approximately 11:30 p.m., the group left the park and were walking down Fullerton to purchase more beer. At this time, they saw four Hispanic males 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. A brawl ensued. Jamie Figueroa, who was also deceased at the time of defendant's trial, and Mario Lopez joined the fight. After approximately 10 minutes, the fight broke up because the victim yelled that the police were coming.
Diaz 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 the victim were also there. The group then walked to the intersection of Fullerton and California Avenues, where the victim left the group to visit his daughter who lived near the intersection. Approximately 10 minutes later, the victim returned. As the victim was walking toward them, Diaz observed a two-door gray Toyota hatchback automobile attempt to smite the victim. Diaz also observed four individuals in the automobile and recognized at least one of them as one of the men his group had been fighting with earlier. Diaz identified this man as the co-defendant.
Diaz testified that the group then started walking eastbound on Fullerton toward a tavern. Diaz left the group to go to a nearby school playground. While there, Diaz heard two sounds that sounded like firecrackers. He alighted on his bicycle and rode toward Fullerton. He saw a squad car and the victim on the ground. At this point, he thought that the squad car had hit the victim. Diaz then rode the bike to a nearby gas station, purchased two hot dogs, and rode back to the scene of what he believed to be an accident. The victim was still lying on the street and, at this time, he found out that the victim had been shot. On cross-examination, he admitted that he never observed the person who actually shot the victim.
Diaz testified that he was a member of a gang and that Ortiz, the victim, Figueroa, Lopez and Tootie were also in the same gang. Diaz also stated that 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.
Christopher Donnelly, who had been the assistant State's Attorney who prosecuted the co-defendant back in 1991, took the stand at defendant's trial and read aloud Ortiz's testimony from the co-defendant's trial. Ortiz's testimony regarding the fight and attempted hit-and-run was basically consistent with Diaz's testimony. Ortiz testified that there were four individuals in the car and that he saw the faces of two of them. Ortiz recognized the co-defendant, as one of the individuals whom he had seen earlier that night in the fight. Ortiz also saw the shooter, whom he later identified as the defendant.
Ortiz testified that he, Diaz, the victim and Figueroa then walked eastbound on Fullerton. When they were in front of the tavern, Ortiz stopped and spoke to some friends. Diaz left on a bicycle to go to Gatither Park. The victim borrowed a bicycle and left because he had left his wallet at the park. Ortiz observed the victim looking for his wallet, when a small gray automobile pulled into the parking lot by the park. Ortiz recognized the automobile as the one that had tried to run over the victim earlier. The passenger side door opened; a man got out, reached over the roof of the car, and shot the victim. The shooter then got back in the automobile and it drove off.
Ortiz testified that on May 6, 1990, he went to Chicago police Area 5 headquarters and viewed a lineup. Out of the four-person lineup, he identified two individuals. He identified the co-defendant as one of the individuals with whom he had been fighting and defendant as the shooter, who was not someone who had been involved in the fight. Ortiz also identified both individuals as passengers in the grey Toyota. On cross-examination, Ortiz gave varying distances between himself and the car at the time of the shooting, ranging from between 5 and 100 feet.
Chicago police detective Reynaldo Guevara testified that, shortly after the shooting, he arrested the defendant and co-defendant. Detective Roland Palinsky testified that on May 6, 1990, at approximately 1 a.m., he conducted a four-person lineup that included defendant, defendant's brother and co-defendant. Detective Palinsky testified that Ortiz viewed the lineup and identified defendant as the shooter and co-defendant as a passenger.
The defense case included the testimony of: Nicholas Roman, defendant's work supervisor at the time of the murder; Renaldo Melchor Santana, defendant's brother; and defendant himself. Nicholas Roman, who was 50 years old, testified that he was working with defendant at the time of the murder. In April 1990, Roman was the second-shift supervisor of dishwashers and kitchen cleanup at a Streeterville-area restaurant, and defendant worked under him. Roman told the police that, on April 29, 1990, defendant began work between 1 and 1:30 p.m. and worked until approximately 1 a.m. Roman testified that he, defendant and Angel Castillo all left work at the same time, proceeding to the basement to change their clothes.
Roman was shown defendant's time card, which indicated that defendant punched in at 4 or 4:30 p.m. and punched out at 10:06 p.m. Roman explained that defendant punched out only for a 30-minute break and was unable to punch back in because the time clock was broken, as it frequently was. Roman and defendant worked together for approximately two years and were solely work acquaintances. Roman had not been in contact with defendant after his arrest in 1990.
Renaldo Melchor Santana, defendant's brother, testified that on May 5, 1990, he was in a bar where he saw co-defendant, whom he recognized because they lived in the same building. Defendant later came to the bar to get Reynaldo. At this time, co-defendant was arrested. According to Reynaldo, approximately one-half hour later, he, defendant, and two other individuals were also arrested. Reynaldo and defendant were both placed in a lineup. Thereafter, Reynaldo was allowed to leave the police station, but defendant was not.
Defendant testified that in April 1990, he worked as a dishwasher at a Streeterville-area restaurant with his supervisor, Nicholas Roman. On April 29, 1990, defendant worked from 1 p.m. until approximately 12:30 a.m. He left work with Roman and others, changing clothes in the basement. He did not remember if he punched out that night, and he thought that he had taken a break ...