Appeal from the Circuit Court of OF Lake County. Honorable Theodore S. Potkonjak, Judge, Presiding. No. 04-CF-3218
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
Defendant Juan Carballido appeals the trial court's first-stage dismissal of his pro se post-conviction petition. 725 ILCS 5/122-1 et seq. (West 2008). For the reasons that follow, we reverse and remand.
Our background discussion is focused on those facts relevant to defendant's post-conviction petition, particularly those facts relevant to defendant's claim that trial counsel was ineffective for failing to file a motion to suppress. However, further details of the underlying offense and procedural history may be found in People v. Carballido, No. 2-06-0397 (2007) (unpublished order under Supreme Court Rule 23).
On March 18, 2005, a jury found defendant guilty of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2004)), under an accountability theory. Defendant, age 17 at the time of the offense, drove the car to and from the scene where Eduardo Perez, age 21 and a member of the Latin Kings gang, allegedly shot and killed the 15-year old victim, Terreal Gates, whom Perez believed to be associated with the Gangster Disciples gang. In sentencing defendant to 35 years' imprisonment, the trial court acknowledged defendant's youth and comparatively minor criminal history (i.e., possession of tobacco by a minor, truancy, and disorderly conduct), but placed great emphasis on the seriousness of the offense, the involvement of a gun, and the need to deter others. Perez was at large and believed to be in Mexico at the time of defendant's sentencing. The only other passenger in the car, Alvaro Jasso, pleaded guilty to felony mob action and received 30 months' probation and 9 months in work release in exchange for testifying against defendant.
The State's case largely turned on establishing that defendant knew that Perez possessed a gun when he drove Perez to the Greenleaf Apartments, known to be Gangster Disciples territory. A witness to the shooting, John Hood,*fn1 testified that he pulled into the Greenleaf apartment complex after work, around 4 p.m. He saw defendant, whom he recognized as an acquaintance of his younger brother, driving a black Lumina. He also saw Gates and several of Gates' cousins in a green minivan. Both vehicles were moving slowly, and the occupants were yelling at one another (defendant later testified that he made at least four loops around the parking lot). The minivan stopped, and Gates and two or three others got out. Then the Lumina stopped, slowly reversed, and stopped again. Hood did not think to take cover at this point, because his assessment of the situation was that it was "just kids yelling." However, Perez exited the Lumina, pulled a gun, and fired shots. Defendant waited for Perez to get back in the vehicle before fleeing. Hood followed defendant's vehicle to get the plate number, which he was able to punch into his cellular phone. When Hood returned to the parking lot, the green minivan was gone (as Gates' cousin was using it to drive Gates to the hospital).
After the shooting, the police arrived at defendant's family home. According to Detective Andrew Jones, it was before 2 a.m. Jones informed defendant that they were investigating a homicide and that witnesses had placed defendant at the scene. In response, defendant stated that he had not expected things to become so serious. According to Jones, Jones interrupted defendant at that point and orally advised him of his Miranda rights. Defendant agreed to accompany the police to the station for questioning.
Jones testified that, while in the squad car, defendant provided his first explanation of what happened, beginning with why he drove to the Greenleaf Apartments. Defendant said that members of the Gangster Disciples gang had threatened him the day prior to the incident. That day, a carload of Gangster Disciples followed defendant home. Defendant, who was with his sister Lucy (age 14 at the time of trial), pulled into his driveway but did not exit the vehicle. The Gangster Disciples "rolled" by his house and yelled threats and "dropped" gang signs. Once the Gangster Disciples drove out of sight, defendant grabbed Lucy, ran inside, and locked the doors. Then, the vehicle that had followed him returned, this time accompanied by a second vehicle. Both vehicles stopped by defendant's house and the occupants again dropped gang signs and yelled threats at him. Eventually, both cars left. Defendant explained to Jones that, although he was not a gang member, many of his friends were members of the Latin Kings, a rival gang of the Gangster Disciples. The Gangster Disciples' threats caused defendant to be overcome with fear and anger. As a result, defendant told Perez, a Latin Kings member, about the Gangster Disciples' threats. Defendant later drove Perez to the Greenleaf apartment complex, where Perez produced a handgun and fired at a group of people in a van (i.e., Gates and his cousins) whom defendant assumed to be affiliated with the Gangster Disciples. Defendant insisted that he did not know that Perez had a handgun prior to the shooting. Rather, defendant maintained that he thought they were going to stir up less serious trouble, such as a fistfight. After the shooting, defendant drove to a park, and Perez exited the vehicle. Defendant then drove home and locked his car in the garage.
Defendant arrived at the police station at approximately 2 a.m. There, he was taken to an interview room, where he read and signed a preprinted Miranda form. Defendant repeated his first version of events to police officers Jones and Wendell Russell (who did not testify at trial). He formalized this version of events in a written statement. He began the written statement at 2:30 a.m., accepted a Pepsi at 2:40 a.m., and took a bathroom break at 3:10 a.m.
Jones reviewed defendant's written statement. At 3:40 a.m., Jones and Russell resumed their interview with defendant. This time, according to defendant's testimony at trial and as is his position in his post-conviction petition, Jones used a higher-pressure interview technique, causing defendant to change his story to say that he did know that Perez had a gun.
Regarding the manner in which Jones interviewed defendant after 3:40 a.m., defendant testified:
"A. [They] come back and tell me that they had a problem. After they had read the [first written] statement, they were telling me that I was lying to them.
Q. Or had a problem with your statement?
Q. Or actually, all three statements [i.e., the two oral statements and the one written statement] you had given?
A. After I had told them I didn't know about the gun, they were saying I was lying to them. After I explained it about three times to them, I had written it down on a piece of paper, they still wouldn't go with it.
Q. Were both of them in the room telling you that?
Q. And how long did they tell you that?
A. About 20 minutes [i.e., between 3:40 a.m. and 4 a.m.].
Q. At some point, do you say: I knew he had a gun?
A. Because they wouldn't leave me alone if I told them I didn't know he had a gun. I was exhausted. I didn't know he had a gun. I had written it for them to leave me alone. That's what they wanted to hear. I just came up with that.
Q. Do they ask you whether you knew [Perez] was going to shoot anybody with the gun?
Q. Did they ask you that question directly?
A. Because they wouldn't leave me alone after I had told them that I ...