Appeal from the Circuit Court of Cook County. No. 07 CR 2653 The Honorable John J. Fleming, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion.
Justice Robert E. Gordon specially concurred, with opinion.
Defendant Diego Santiago seeks plain error review of two issues following his conviction of first degree murder after a jury trial. He first contends the State violated the evidentiary rule that bars the introduction of prior consistent statements when it introduced two prior statements inconsistent with the defendant's accomplices' trial testimony, a claim he admits was recently addressed and rejected by this court. The defendant next argues the State's references to the accomplices' guilty pleas improperly suggested to the jury that the guilty pleas were evidence of the defendant's guilt. The references to the guilty pleas were made in the course of the State's direct examination of the accomplices after each denied his prior identification of the defendant as the shooter in the murder. We reject the defendant's underlying contention that the record demonstrates evidentiary errors occurred during his trial to support claims of plain error. We affirm.
The defendant, identified at trial as a member of the Maniac Latin Disciple (MLD) gang, was charged in the shooting death of Epifanio Santos, Jr., a member of the rival Spanish Cobra (SC) gang, that occurred during a street fight at the intersection of Armitage and Tripp in Chicago on December 28, 2006. The defendant and co-defendants Emelio Rivera, Miguel Adorno, Alexandro Flores, and Martin Logan were indicted for first degree murder and conspiracy to commit first degree murder. The defendant was also charged with unlawful use of a weapon by a felon.
Two days after the shooting, Adorno admitted in a videotaped statement to police that he was a member of the MLDs and that he participated in the street fight with the SCs that resulted in Santos' death. On May 20, 2008, Adorno pleaded guilty to conspiracy to commit first degree murder. Adorno provided substantially the same information in his videotaped interview and at his guilty plea hearing. At the plea hearing, Adorno testified under oath that his videotaped statement to the police was a true and accurate depiction of what occurred. Adorno stated that the defendant shot Santos in the head. Earlier on the day of the shooting, there had been a fight between the MLDs and the SCs. A group of MLDs then convened at the defendant's house, where the defendant received a telephone call from his girlfriend Lisa, who was the mother of Santos' child. The defendant and Santos were well acquainted and had fought periodically over several months. Adorno overheard the defendant tell Lisa: "stop putting my name in shit, bitch, 'cuz you're going to see what's going to happen to him." According to Adorno, the defendant retrieved a gun at his home before everyone departed the defendant's house to look for SCs. The MLDs came across Santos and a fellow SC, Rene Otero, and a fight ensued. Adorno struck Santos, and Logan punched him, knocking him to the ground. The defendant then approached and said "I got this," and shot Santos in the head with an automatic weapon. The men fled the scene. The defendant asked Adorno to get rid of the weapon.
Logan was arrested the day after the shooting. He too gave a videotaped interview naming the defendant as the shooter. Logan pleaded guilty to conspiracy to commit murder on August 18, 2008. Like Adorno, he acknowledged, under oath, the accuracy of his interview statements at his plea hearing. The information Logan provided in his police interview and at his guilty plea was essentially the same that Adorno provided.
The defendant's case proceeded to trial in August 2009. Before testimony was heard, the court granted the State's motion to admit evidence of gang crimes. The State called Adorno and Logan in its case in chief.
At trial, Adorno claimed to be unable to recall a significant portion of his videotaped interview with police detectives and his admissions at his guilty plea hearing. He testified he was a member of the MLDs, but the defendant was not. According to Adorno's testimony, the co-defendants convened in the defendant's backyard prior to the shooting and another MLD named Casper was given a gun so he could "prove himself." Adorno claimed it was Casper that was present at the fight, not the defendant, and that Casper was the only person with a gun at the fight. Adorno stated that while he did not see the actual shooting take place, the shooter was not the defendant. Adorno claimed he told the detectives that Casper had committed the shooting. He claimed to have pleaded guilty only to get out of Cook County jail.
Logan's trial testimony was substantially similar to Adorno's. He was unable to recall much of his statement to police detectives or his testimony at his guilty plea hearing. He testified that the defendant was not present at the fight and was not the shooter. He claimed that after he was arrested, the arresting officers stopped the police vehicle on the way to the police station to tell Logan what to say in the police interview that would follow once they arrived at the station. He testified the arresting officers threatened to charge him with the shooting but told him they would let him go if he said the defendant was the shooter. Logan testified he rejected repeating, at the defendant's trial, the story given to him by the police because he was charged in the shooting despite police promises to the contrary.
The State also called MLD member Carlos Garcia, who identified the defendant as a member of the MLDs and admitted participating in the fight with the SCs that resulted in Santos' death. Garcia testified he observed the defendant arrive at the fight with a gun and walk toward Santos, who was on the ground. He heard shooting, but did not see the actual shots fired. Garcia fled the scene in a car with Flores and Rivera. After they fled, Flores realized he had left his coat with his identification at the scene of the shooting. The three drove back to the scene where they were arrested.
SC member Rene Otero testified that he and Santos were smoking marijuana at the intersection of Armitage and Tripp on December 28, 2006, when they were assaulted by a group of men. Otero and Santos fought back. During the fight, Otero saw Santos fall to the ground and then heard two gunshots. He did not see the shooting, but testified he saw the defendant armed with a gun during the fight. Otero did not know the defendant previously but identified him as the shooter from a photograph displayed at the police station.
Detective James Gilger testified he saw Santos' body on the sidewalk when he arrived at the scene of the shooting. Evidence technicians recovered two bullet fragments and a shell casing. Officer Vincent Stinar testified he was one of the officers that arrested Logan the day after the shooting. He testified he took Logan directly to the police station without making a stop. He denied telling Logan what to say in his videotaped interview.
The jury found the defendant guilty of first degree murder, which he committed by personally discharging a firearm that caused Santos' death. The defendant was sentenced to 30 years for the murder to be followed by an additional 25 years for discharging the weapon in the course of committing murder. This timely appeal followed.
The defendant acknowledges the issues he raises were not preserved in the proceedings below. Plain error review is warranted when the evidence is closely balanced or the unpreserved errors deprived the defendant of fundamental fairness. People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005). The defendant makes no claim that the evidence is closely balanced, a claim we would find foreclosed by the substantial evidence introduced at his trial.*fn1 We review the alleged errors under the second-prong of plain error only. "In the second instance, the defendant must prove there was plain error and that error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Herron, 215 Ill. 2d at 187 (citing People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995)).
The State counters that the issues raised by the defendant fail to demonstrate trial error, which dooms the defendant's claims of plain errors. As to the first issue, the State points out that this court recently ruled the evidentiary rule against the admission of prior consistent statements does not apply to multiple prior inconsistent statements. Thus, no error occurred in the introduction of the videotaped interviews and the admissions at the guilty plea hearings. As to the second issue, the State responds that the multiple references to each co-defendant's guilty plea were properly introduced to challenge each witness's claim of failed memory and to rebut each witness's trial claim of police intimidation and coercion. The State contends the properly admitted evidence did not compel the jury to find the defendant guilty simply because each co-defendant pleaded guilty. Nor did the State suggest, much less argue, that the guilt of each co-defendant was direct evidence of the defendant's guilt.
It is fundamental that if no error occurred there can be no plain error.
Prior Inconsistent Statements
The defendant contends the State violated the common law evidentiary rule against repetition of a prior consistent statement by admitting more than one prior inconsistent statement to challenge Adorno's and Logan's trial testimony that the defendant had no involvement with the death of Santos. He argues admission of both the co-defendants' police statements, as well as their plea hearing testimony, was cumulative and they "unduly bolstered" each other.
We first observe that the defendant fails to provide us with a single case that holds that the evidentiary rulings he asserts before us, taken as error, "affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Herron, 215 Ill. 2d at 187. In this context of a plain error claim, we note the defendant's agreement with the State that this issue concerns the admissibility of evidence, subject to review for an abuse of discretion. See People v. Adkins, 239 Ill. 2d 1, 23, 940 N.E.2d 11 (2010) ("The admissibility of evidence at trial is a matter within the sound discretion of the trial court and that court's decision will not be overturned absent a clear abuse of that discretion."). The defendant further concedes that separately, the videotaped statement and the guilty plea testimony were admissible under section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2006)).
Section 115-10.1 renders a recanting witness's prior inconsistent statements substantively admissible if the witness is subject to cross-examination and meets certain other requirements, which the defendant does not dispute were established here. People v. Hastings, 161 Ill. App. 3d 714, 719, 515 N.E.2d 260 (1987). Finally, the defendant acknowledges that this court resolved the issue of the admissibility of multiple prior inconsistent statements against the position he takes before us in People v. Johnson, 385 Ill. App. 3d 585, 898 N.E.2d 658 (2008).
In Johnson, the victim gave a written statement and testified before the grand jury that the defendant shot him. He recanted his identification of the defendant at trial. Johnson, 385 Ill. App. 3d at 588. On review of his conviction, the defendant argued both prior statements should not have been admitted at trial because the prior statements were consistent with each other and therefore subject to the rule against admission of prior consistent statements. Id. at 608. Though not entirely clear, it appears the Johnson defendant argued that the State should have introduced only one or the other. Id. We disagreed. "The defense is absolutely right that there is a long-established evidentiary rule against admission of a prior consistent statement ***. [Citations.] However, at issue here are prior inconsistent statements, or statements inconsistent with the witness's trial testimony." (Emphasis in original.) Id. We found the admission of multiple inconsistent statements is not subject to the rule against the admission of prior consistent statements even though the prior statements, inconsistent with the trial testimony, are consistent with each other. "The rule against admission of consistent statements exists because they needlessly bolster the witness's trial testimony. [Citations.] Obviously, inconsistent statements cannot bolster a witness's trial testimony. Thus, application of the rule makes no sense here." Id. We rejected the same claim in People v. Maldonado, 398 Ill. App. 3d 401, 423, 922 N.E.2d 1211 (2010). "We agree [with Johnson] and hold that the introduction of more than one statement that is inconsistent with a witness's trial testimony, whether or not such statements are consistent with each other, is proper." Maldonado, 398 Ill. App. 3d at 423. The defendant's claim that the trial court erred in its evidentiary ruling allowing multiple inconsistent statements cannot stand in light of Johnson and Maldonado.
The defendant nonetheless contends that it is fundamentally unfair not to limit the number of prior inconsistent statements that may be introduced as we permitted in Johnson and Maldonado. He does not explain, however, the nature of the unfairness claim to support limiting the number of prior inconsistent statements that are offered to challenge the credibility of a witness. We are certain that if the defendant had available to him multiple prior inconsistent statements of a prosecution witness, he would seek to introduce each and every one and would do so properly. Of course, at some point, the trial judge may be asked, by way of a motion in limine, to exercise discretion to limit the number of such statements that may be introduced. See People v. Owen, 299 Ill. App. 3d 818, 822, 701 N.E.2d 1174 (1998) ("Motions in limine are designed to call to the attention of a trial ...