Appeal from the Circuit Court of Cook County. No. 07 CR 21201 Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hall and Karnezis concurred in the judgment and the opinion.
¶ 1 Defendant, Samuel Salas, appeals his conviction of first-degree murder and his sentence of 50 years' imprisonment. Defendant contends: (1) the automatic transfer provision of the Juvenile Court Act of 1987 (automatic transfer statute) (705 ILCS 405/5-130 (West 2008)), pursuant to which defendant was transferred to adult court, violates the due process clauses of the federal and state constitutions, the eighth amendment of the federal Constitution, and the proportionality clause of the Illinois Constitution; (2) the circuit court erred by refusing to give a second-degree murder instruction where the court instructed the jury on self-defense; (3) his trial counsel provided ineffective assistance; (4) defendant was deprived of his constitutional right to be present for the jury instruction conference; and (5) the State made improper remarks during closing arguments. We affirm.
¶ 2 The 16-year-old defendant was charged with the first-degree murder of the victim, Sergio Ojeda. Because of his age and the nature of his offense, defendant's case was automatically transferred to adult criminal court pursuant to the automatic transfer statute (705 ILCS 405/5-130 (West 2008)), which provides, in pertinent part, that 15- and 16-year-old defendants charged with first-degree murder are to be prosecuted under the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2008)) and not the Juvenile Court Act of 1987.
¶ 3 Defendant's jury trial followed. At trial, 12-year-old Emmanuel Torres testified that in September 2007, he lived on the second floor of an apartment building at 4511 South Spaulding Avenue in Chicago. Sergio lived in the same building and dated one of Emmanuel's sisters. After getting out of school at approximately 3:40 p.m. on September 11, 2007, Emmanuel played soccer with some friends in front of Berenice Lopez's house, which was down the street from Emmanuel's apartment building. Sergio was in an alley playing soccer with some of his friends. Emmanuel heard four or five gunshots, looked toward the alley, and saw Sergio trying to open a fence. Emmanuel saw a Hispanic guy in a white shirt and jeans with long, "puffy" hair shoot Sergio with a black gun from about two feet away. Sergio did not have a gun in his hands. Emmanuel did not see anyone other than the shooter and Sergio in the alley at that time. Emmanuel did not get a good look at the shooter's face.
¶ 4 Emmanuel testified he ran across the street to a friend's house. Emmanuel went inside the house and then peeked out a window. Emmanuel saw a group of "gangbangers," including three guys named Salvatore, Fernando, and Vince, beating the shooter. The gangbangers had been playing soccer with Sergio prior to the shooting.
¶ 5 Emmanuel testified he spoke to police after the shooting. Emmanuel told the police he saw a guy riding a bicycle and he saw a guy in a white shirt shoot Sergio four or five times. Emmanuel walked around the area with the police officer and pointed out where the shooting occurred. Emmanuel testified he did not remember telling the police officer and an assistant State's Attorney that he saw two guys walking on 45th Street, that he saw two guys walking who turned onto Spaulding Avenue, that he saw two guys riding bicycles, or that he saw two guys walking up the street yelling at other people.
¶ 6 Berenice Lopez testified that on September 11, 2007, she lived on the second floor of an apartment building at 4531 South Spaulding Avenue in Chicago with her parents and her two children. Sergio was her neighbor. Shortly before 6 p.m. on September 11, 2007, Berenice was outside her building, waiting for her mother-in-law to pick up her son. Berenice saw Sergio two houses away, walking toward an alley with Fernando, Salvatore, and Rego. After her mother-in-law picked up her son, Berenice tried to get back inside the apartment building, but the front door was locked. She began walking toward the back door, which was by the alley. Berenice saw Sergio in the alley, running toward 45th Street. She saw nothing in his hands. Defendant, who was wearing a white shirt and jeans, was running behind Sergio. Defendant had something black in his hand that he was holding out with an extended right arm. Berenice did not see anyone else in the alley. Sergio was trying to open the gate to the yard where Berenice lived. Berenice turned away and heard four or five gunshots. Berenice turned back around and saw defendant running toward 46th Street. Sergio was lying on the ground by the gate.
¶ 7 Berenice testified she went to Sergio and saw that he was bleeding from the head. She ran back to the front of her building and screamed for someone to call 911. Then she saw Fernando, Rodriguez and Vincent run over to defendant, who was three houses away from her, and they began beating him. Berenice ran over and told them to stop. Defendant grabbed Berenice and pulled her on top of him. As she tried to get up, Berenice saw a gun on the ground. Berenice testified the gun had to have come from defendant because it fell on her side and defendant was the only other person on the ground near her. Fernando picked up the gun with his shirt and began running toward 46th Street and Sawyer Avenue. The police arrived and defendant ran.
¶ 8 Berenice testified she went to the police station on the evening of September 11, 2007, and spoke with Detective Henry about the shooting. He showed her a photo array. Berenice identified a photograph of defendant as the person who shot Sergio. Berenice returned to the police station on October 3, 2007, and picked defendant out of a lineup as the person who shot Sergio.
¶ 9 Yvonne Nevarez, a Chicago public school teacher, testified that, on September 11, 2007, she was living at 4546 South Spaulding Avenue in Chicago. At approximately 6 p.m. on that date, she was in the alley packing up her father's truck when she heard a noise and saw defendant, who was wearing jean shorts and a white T-shirt, get off a bicycle and run toward her with a black gun in his hand. Defendant ran inside Yvonne's house, and she followed him inside. Yvonne's sons, ages 9 and 15, were also inside the house. Yvonne told defendant to get out of her house. Defendant said, "Save me." Then defendant ran out the front door with the gun still in his hand. Defendant crossed the street, where other teenage boys began beating him. Yvonne called 911.
¶ 10 Yvonne testified that later that evening, a detective came to her house and showed her a series of photographs. She identified a photograph of defendant as the person who ran into her house with a gun. On October 3, 2007, Yvonne went to the police station and picked defendant out of a lineup as the person who ran into her house with a gun.
¶ 11 Vincent Denova testified that on September 11, 2007, he lived at 4637 South Spaulding Avenue in Chicago and was a member of the SD gang, also known as the Satan Disciples. The 4600 block of South Spaulding Avenue was Satan Disciple territory. Vincent admitted he lied when he told the police and the grand jury that he was not a Satan Disciple.
¶ 12 Vincent testified that at approximately 6 p.m. on September 11, 2007, he was in the alley between Spaulding and Sawyer Avenues playing soccer with Sergio, Fernando Diaz, Salvatore Diaz, another boy named Fernando, and Rego. Vincent identified Fernando Diaz and Salvatore Diaz as Satan Disciples, but stated that the other Fernando, Rego, and Sergio were not Satan Disciples. They stopped playing when the ball went over the gate. They went to the front of a nearby house and started talking and drinking beer. Rego stated he needed his ball back. Sergio went through the gangway toward the alley to retrieve the ball. Vincent followed him from a couple of feet away. When Sergio reached the alley, he turned to the left and began running. Vincent then saw a light-skinned, Hispanic male, wearing a white shirt and holding a gun, start shooting. Vincent could not see the shooter's face. Vincent heard four or five gunshots and then ran and hid between a couple of nearby buildings.
¶ 13 Vincent testified that, after the shooting stopped, he heard Berenice screaming that Sergio had been shot. Vincent came out of hiding and saw that Sergio was lying facedown on the ground with his hand holding onto the gate that surrounded Berenice's backyard. Vincent heard Salvatore and Berenice say, "He's right there." People were pointing at a "guy" in a white shirt who was standing between Vincent and Salvatore.
¶ 14 Vincent testified he, Fernando Diaz, the other Fernando, and Salvatore began beating the guy in the white shirt, who fell to the ground. Vincent kicked him and hit him with a brick. Vincent saw a gun fall from the guy's waist. Berenice ran over and tried to stop them from beating him. The guy grabbed Berenice and pulled her down on top of him. Vincent kicked him in the face and he let Berenice go. The police arrived and the guy got up and ran away.
¶ 15 Vincent testified that police officers showed him some photographs on September 11, 2007, and asked him if he could identify the guy in the white shirt who had been holding the gun. Vincent was unable to identify anyone.
¶ 16 Fernando Diaz testified that, in September 2007, he lived at 5026 South Spaulding Avenue and was a member of the Satan Disciples gang. At approximately 6 p.m. on September 11, 2007, he was in the alley between Sawyer and Spaulding Avenues and 45th and 46th Streets playing soccer and drinking beer with Sergio, Salvatore, Vincent, Fernando Rodriguez, and Rego. After they stopped playing, they went "to the front" and were "just sitting around." At some point, Sergio began walking back toward the alley. Fernando Diaz and Salvatore followed from behind.
¶ 17 Diaz testified that, at the alley, he saw defendant get off a bicycle, pull out a gun, and begin running. Defendant was wearing a white shirt. Diaz heard five or six gunshots but did not see the actual shooting. When the shots rang out, Diaz ran and hid. After the shooting stopped, Diaz and Salvatore went back to the alley and saw defendant holding a gun. Defendant pointed the gun at Diaz and tried to fire it twice, but it just clicked because it was out of bullets. Diaz and Salvatore chased defendant, who ran into a nearby house. Diaz lost sight of him, but he later saw him at 46th Street and Spaulding Avenue. Diaz grabbed a rock and went after him. Fernando Rodriguez knocked defendant down and hit him with a brick. Diaz and Vincent began hitting defendant, and Diaz also kicked him in the body. Berenice ran over and told them to stop.
¶ 18 Diaz testified that the gun fell during the altercation. Diaz grabbed the gun and began running. Police stopped him at 46th Street and Sawyer Avenue.
¶ 19 Officer Ronald Reed testified he was working in uniform in a marked car with his partner, Officer Lorenz, on September 11, 2007, when he was assigned to the 4500 block of South Spaulding Avenue. When they arrived on the block, they saw people pointing at a guy in a white shirt and saying, "He shot my guy." Officer Reed made an in-court identification of defendant as the guy in the white shirt.
¶ 20 Officer Reed testified he exited his patrol car and saw defendant standing on the sidewalk, bleeding from his head. When defendant saw the officer, he began to run away, eastbound, through the gangway. Officer Reed and Officer Lorenz chased after defendant and eventually apprehended him. Defendant did not have any weapons on him.
¶ 21 Officer Reed testified that, after they apprehended defendant, a couple of Drug Enforcement Administration (DEA) agents at the end of the alley yelled, "We have another one down here." Officer Reed walked over and saw they had detained Fernando Diaz. There was a black gun on the ground near Diaz. Officer Reed placed Diaz in custody and secured the gun.
¶ 22 Officer Reed testified regarding the tattoos defendant had when he was arrested. Defendant had three dots on his right middle finger. The three dots indicated defendant was a member of a gang that was part of the Folk Nation. Folk Nation gangs are rivals of the Satan Disciples.
¶ 23 Officer Paul Lorenz testified consistently with Officer Reed regarding their apprehension of defendant. Officer Lorenz further testified that, following defendant's arrest, the officer located Sergio, who was lying on the ground with a gunshot wound to the back of his head. Officer Lorenz called for an ambulance and spoke with Berenice. Berenice told him she saw a male Hispanic in a white T-shirt come up to Sergio and shoot him once in the head. Officer Lorenz testified that Berenice identified defendant as the person in the white T-shirt who had shot Sergio.
¶ 24 Keith Landa, a special agent with the DEA, testified that at approximately 6 p.m. on September 11, 2007, he was in the area of the 4500 block of South Sawyer Avenue with some other DEA agents, conducting surveillance of a drug-trafficking organization. Agent Landa heard several gunshots and saw Fernando Diaz run away, with a gun near his waistband. Agent Landa and his fellow agents drew their guns, identified themselves, and ordered Diaz to the ground. He complied. Agent Landa turned Diaz and the gun over to Officer Reed.
¶ 25 Detective John Henry testified he was working with his partner, Detective Holmes, on September 11, 2007, when they received an assignment shortly after 6 p.m. to investigate Sergio's shooting death. They went to the alley at 4531 South Spaulding Avenue, where they observed Sergio's body lying on his back, covered in a white sheet. Detective Henry returned to the police station, where he spoke with Berenice and showed her a photo array. Berenice identified a photograph of defendant as the person she saw chasing Sergio with a gun. On October 3, 2007, Detective Henry met again with Berenice at the police station, where she viewed a lineup and identified defendant as the person she saw chasing Sergio with a gun and whom she saw fleeing southbound through the alley after the shots were fired.
¶ 26 Detective Patrick McCormack testified he received an assignment on September 11, 2007, to investigate Sergio's shooting death. Detective McCormack went to the 4500 block of South Spaulding and spoke with Yvonne Nevarez. Detective McCormack showed Yvonne a photo array, from which she identified a photograph of defendant as the person who ran into her house with a gun.
¶ 27 Detective Henry testified that on October 3, 2007, Yvonne identified defendant in a lineup as the person who ran into her house with a gun.
¶ 28 The parties stipulated that Jill Counts would testify she was a forensic investigator with the Chicago police department. At approximately 6:45 p.m. on September 11, 2007, she went to the area of 4531 South Spaulding Avenue to investigate Sergio's shooting death. She recovered one spent cartridge case from the rear gangway at 4531 South Spaulding Avenue, five spent cartridge cases from the alley at 4536 South Sawyer Avenue and two bricks from 4551 South Spaulding Avenue.
¶ 29 The parties stipulated that Sheila Daugherty, a forensic scientist with the Illinois State Police Division of Forensic Services and a qualified expert in the field of fingerprint analysis and fingerprint identification, would testify she received six fired cartridge cases, one gun and one ammunition magazine in connection with Sergio's homicide. None of those items contained latent impressions suitable for comparison.
¶ 30 The parties stipulated that Aaron Horn, a forensic scientist with the Illinois State Police and a qualified expert witness in the field of firearms identification, would testify he received six fired cartridge cases, a gun and magazine, two fired bullets and one lead fragment in connection with the investigation of Sergio's homicide. Horn tested the items and determined that the two fired bullets and six discharged cartridge cases were all fired from the gun he received, and that the two bullets could have been one bullet that split after striking bones in a human head.
¶ 31 The parties stipulated that forensic investigator Eugene Chudy would testify that at approximately 8:25 p.m. on September 11, 2007, he went to Mt. Sinai Hospital to administer a gunshot-residue collection kit and recover clothing. He photographed defendant in the emergency room and collected gunshot-residue samples from defendant's hands and forehead.
¶ 32 Scott Rochowicz testified he was a forensic scientist with the Illinois State Police who specialized in microscopy and trace evidence. Defendant stipulated that Rochowicz was an expert in the field of gunshot residue. Rochowicz testified he analyzed the gunshot-residue kit collected from defendant. He explained that gunshot residue contains antimony, barium and lead. A particle containing two of these three elements is referred to as a consistent particle, whereas a particle containing all three of these elements is referred to as a unique particle. A unique particle only originates from the discharge of a firearm. Tests on the swabs from defendant's forehead and hands did not reveal any unique particles. Rochowicz concluded that the absence of any unique particles indicated defendant "may not have discharged a firearm."
¶ 33 Rochowicz further testified that not everyone who fires a gun will have gunshot residue on his or her hands. A defendant could engage in various activities that would remove gunshot residue, such as: rubbing his hands together or on his pants; putting his hands in his pockets; washing his hands; running; holding the handlebars of a bicycle; opening a door; engaging in a fistfight; getting blood on his hands; having his hands come into ...