Appeal from the Circuit Court of Cook County. No. 05 CR 25129Honorable Stanley J. Sacks Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lavin
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.
Following a jury trial, defendant Jose Salcedo was found guilty of the first degree murder of Keith Thomas (720 ILCS 5/9-1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). The trial court sentenced defendant to 28 years in prison for first degree murder, an additional 25 years in prison for discharging a firearm causing death and a concurrent 10-year prison term for aggravated discharge of a firearm. On appeal, defendant asserts that (1) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); (2) the trial court erroneously submitted an initial aggressor instruction to the jury; (3) the trial court improperly prohibited defendant from presenting evidence regarding the victim's prior act of aggression; and (4) trial counsel was ineffective for stipulating to the recovery of firearm-related evidence from defendant's home. We affirm.
The unfortunate events that led to the death of Keith Thomas occurred as he was driving to pick up his mother at a Chicago Transit Authority (CTA) elevated train station in the late afternoon of September 28, 2005. As he drove north on Pulaski Road, Thomas was shot several times by defendant, who claimed that the victim had struck his motor vehicle at least once and then allegedly brandished a gun at defendant. Defendant fled the scene, but was apprehended several days later. A subsequent search of the victim and his automobile revealed no weapons, just his dead body with a cell phone in his lap. While it was undisputed that defendant was the individual who shot the victim, a major controversy at trial concerned whether the alleged vehicular collision contributed to the defendant's decision to shoot the victim, on the basis that he felt in fear for his life.
The State and the defendant obviously pursued diametrically opposing
theories at trial. The State's theory was that on the day in question,
the victim and defendant were both driving when the victim allegedly
bumped into defendant's car and continued driving. As a result,
defendant became angry, chased the victim and intentionally fired
multiple shots into the victim's car, resulting in his death. The
State also argued that because defendant was the initial aggressor, he
could not have acted in self-defense or the unreasonable belief that
self-defense was warranted. Defendant testified he was driving with
his three-year-old son when the victim intentionally struck
defendant's car. Defense counsel argued that defendant, who had a
heightened sense of fear for his safety because he had previously been
shot, believed he saw a
silver gun in the victim's hand and fired multiple shots at
him. Counsel dealt with the absent weapon by arguing that the gun may
have been removed from the car or that defendant mistakenly believed
that the silver cell phone was a gun. Counsel asked the jury to find
defendant not guilty based on self-defense or, alternatively, guilty
of second degree murder based on an unreasonable belief that
self-defense was warranted.
Michael Considine testified, in pertinent part, that at about 5:30 p.m. on September 28, 2005, he was on his way to pick up his mother from the CTA Orange Line train station when he stopped his car facing east at a red light at the intersection of 51st Street and Pulaski Road. He then heard multiple gunshots and looked in the direction of where the shots had been fired. He saw a white or grey car, which had been stopped facing north in the left turning lane, drift toward oncoming southbound traffic and stop at the curb. Next to the passenger side of that car was a red car, which continued to drive north at a high speed. Considine called 911 and looked inside the grey car but did not see a cell phone. He did not put the car in park and did not see anyone else put his or her hand inside the car. When the police arrived, Considine described the red car and its driver.
Officer John Svienty testified that on September 28, 2005, he and his partner were assigned to this investigation. When they arrived at 5054 South Pulaski Road at 5:45 p.m., Officer Svienty saw a grey car facing northwest in the southbound lanes and an unresponsive individual inside. The individual and his car had been shot and a grey cell phone was on his lap. Officer Svienty spoke to Considine, who relayed what he had seen and described the offender and his car. After looking at a photograph showing that the victim's gearshift was in park, Officer Svienty testified that he did not move the gearshift to parkand did not know who did. He did not recover anything from the interior of the car.
Detective Roger Murphy testified that when he and his partner arrived at the scene at about 6:15 p.m. on the day in question, the weather was cold, rainy and windy. Detective Murphy saw the victim in a grey car and observed a cell phone on his lap. He also observed damage to the victim's car, specifically, scrapes on the front left bumper, bullet holes in the passenger side door and shattered glass. Detective Murphy also found fired cartridge cases from a semiautomatic handgun and spoke to Considine, who described the offender and his car, which was last seen going north on Pulaski Road.
Forensic investigator Donald Fanelli testified that when he arrived at the scene at about 7 p.m., he assisted with the recovery of firearm evidence, including .45-caliber bullets and cartridge cases. Upon being shown photographs of the scene, Detective Fanelli testified there were two lanes and an additional turning lane in each direction and that a grey cell phone was in the victim's lap. Detective Fanelli did not find a gun inside the victim's car.
Marie Slaga, the victim's mother, testified that on the day in question, the 19-year-old victim drove her in their grey or silver Chevrolet Malibu to the CTA Orange Line train station at 51st and Pulaski Road to go to work. At 4:30 p.m., they spoke on the phone and arranged for him to pick her up from the same station at about 6:10 p.m. When Slaga arrived, she observed significant traffic, crime scene tape and police officers. She called the victim to tell him not to pick her up but could not reach him. When Slaga walked toward the police officers, she was told that someone had been shot and a grey car was involved. She then recognized her own car, which was at an angle facing north in the southbound lanes of Pulaski Road, and she learned from detectives that her son had been shot.
The parties stipulated to the testimony of several police officers, including Officer Alfonso Castillo, who would testify that he obtained a warrant to search defendant and his apartment regarding a separate investigation. As Officer Castillo and his partner were conducting surveillance outside the apartment on October 3, 2005, they saw defendant drive a maroon 2000 Chevrolet Impala out of his garage. The officers stopped him, recovered his apartment keys and seized his car. Inside the apartment, officers recovered a .45-caliber semiautomatic Ruger firearm, a magazine containing seven .45-caliber rounds of ammunition and an additional round in the chamber of the firearm. The officers recovered a second magazine loaded with six .45-caliber rounds of ammunition, a plastic firearm case and a 9-millimeter Davis Industries pistol, which had two 9-millimeter rounds in its chamber. The officers also recovered a box of 357 Magnum Winchester ammunition, a box of 9-millimeter Winchester ammunition and a box of .45-caliber Winchester ammunition. In addition, the officers recovered a bulletproof vest, defendant's "identification cards" and additional pieces of identification showing defendant lived there. When the officers arrested defendant, they observed that his physical description and car matched the description of the person who shot the victim in this case. Officer Castillo also recalled that a .45-caliber gun was used in the shooting. As a result, he notified the appropriate detectives of defendant's arrest.
Detective John Murray testified that on October 3, 2005, he was
assigned to this investigation. When he arrived at work the next day,
he learned that defendant had been arrested
the day before and was in the custody of a different
division of the police station. Upon the request of Detective
Szudarski and Detective Murray, defendant was released to their
custody and placed in an interview room, where the detectives turned
on a recording device. After the detectives took defendant to the
restroom, he gave a statement. Detective Murray testified that he
never told defendant what he should or should not say and that the
detectives did not speak to him in the hallway to the restroom. During
Detective Murray's testimony, defendant's statement was published for
The video shows that after advising defendant of his rights and giving him food, Detective Murray and Detective Szudarski escorted defendant to the restroom. When they returned a few minutes later, defendant told the detectives he was driving on Pulaski Road at about 54th Street after dropping his girlfriend off, when the victim moved behind defendant and hit him a "little bit." The victim then passed defendant on his right, apparently referring to defendant's passenger side. Defendant stated that the victim "didn't hit me hard but he bumped me." Defendant also stated that the victim cut in front of defendant's car and other cars. The two men did not know each other and no words were exchanged. At first, defendant stalled because he did not want to "deal with" the situation but he became angry because his "shorty" was in the car. Referring to the victim, defendant said, "he tried to get away from me" and then entered the turn lane. Defendant stated that as a result, he "caught up" to the victim and shot him six times with a .45-caliber gun. Defendant further indicated he did not unload the entire clip because he did not want to kill the victim. After the shooting, defendant continued driving on Pulaski Road and went home. Toward the end of the video, defendant was asked if he wanted anything else. Defendant himself did not provide any additional details regarding the shooting at that time, but he raised a number of matters when he testified at trial. Detective Murray testified that after defendant made his statement, evidence technicians were directed to photograph and remove a section of bumper from both defendant's car and the victim's car.
The parties stipulated that forensic investigator Steven Strzepek would testify that he recovered the left front corner bumper of the victim's car and the right rear corner bumper of defendant's car. In addition, forensic scientist Scott Rochowicz testified that he was assigned to compare the sections of bumper taken from the two cars, but he did not see signs of possible paint transfer. Although the bumper from the maroon car had a white to light-grey colored smear, the smear contained an insufficient quantity to do a comparison. In addition, the victim's bumper was heavily scratched and stained but the stain was not maroon paint. Forensic scientist Leah Kane testified that fired bullets and cartridge cases recovered from the scene were fired from the .45-caliber Ruger firearm recovered from defendant's home. The parties further stipulated that Dr. Michelle Jorden would testify that the victim's autopsy revealed one entry gunshot wound to the back of the upper right arm and one entry wound to the upper right back. She opined that the victim died from multiple gunshot wounds in the manner of homicide. When the State rested its case, the trial court granted its motion in limine to prohibit defendant from presenting the statements of Sandy Carrillo, the victim's girlfriend, regarding the victim's alleged aggressive driving.
Defense counsel presented the testimony of Roberto Rodriguez, who testified that in 2005, he was employed by an auto repair shop which defendant frequented. Although Rodriguez could not remember the exact date, at some point near September 28, 2005, defendant brought his maroon or red car to Rodriguez for repairs. The car had sustained damage to the rear quarter panel of the passenger side. Rodriguez removed a dent from the bumper and buffed the car but did not paint it. Even after the repairs, there was still visible damage to the car. Because Rodriguez did the work "on the side," no paperwork was generated.
Defendant, who was 23 years old at time of the incident, testified that on the evening in question, he and his son had been driving home after dropping off Verenise Vasquez, defendant's girlfriend, at Daley College. The weather was rainy and windy. Defendant was driving northbound on Pulaski Road when he saw a grey car behind him at about 54th Street. When defendant first saw the car, it swerved behind him and hit the back of his car. Defendant "heard the bumper crack" but felt the impact only "a little bit." Defendant, believing it was an accident, activated his right turn signal to pull over. As he did so, the grey car hit them from the right side of the car at the back quarter panel. Defendant began swerving but regained control of the car. At that point, defendant "knew it was intentional, on purpose," because the grey car's driver did not respond to defendant's signal to pull over and instead, hit his car a second time.
Defendant testified that as this was happening, he was frightened due to an incident which occurred in 2000, when a van hit the car that he and his sister were traveling in at about 28th Street and Pulaski Road and a person in the van subsequently pointed a gun at them. Defendant and his sister were able to escape and no shots were fired. Defendant also testified that about six years before trial, he was at 30th Street and South Komensky Avenue when he was shot three times. In addition, he owned a bulletproof vest because he was afraid of being shot again. He usually took the vest with him when he left home but was not wearing it during his encounter with the victim.
Defendant continued testifying that the grey car then "cut me off by my right side" and went around defendant on his left side. Defendant did not pull over and call the police at that time because the incident happened very quickly. He did, however, remove his gun from his waistband, keeping the gun out of sight from other drivers. He held the gun in his right hand and drove with his left hand. In addition, defendant rolled down his window because the rain obstructed his view of the grey car. As he continued to drive forward in the same lane, he slowed down due to traffic and a red light at 53rd Street, rather than weaving in and out of traffic to catch up with the grey car. Defendant then saw the grey car, which was about two car lengths ahead of him in the left turn lane. As defendant was passing the grey car, he saw something grey in the driver's hand and believed it was a gun. Defendant then fired five or six shots "[r]eal fast" without aiming his gun. He ...