Appeal from the Circuit Court of Cook County. No. 99 CR 15713 Honorable Jorge Luis Alonso, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.
¶ 1 Following a jury trial in the circuit court of Cook County, defendant Jose Carrilalez*fn1 was convicted of one count of first-degree murder and two counts of attempted first-degree murder. Subsequently, he was sentenced to 45 years of imprisonment for the first-degree murder conviction and two concurrent 20-year prison terms for the attempted first-degree murder convictions. On appeal, the defendant argues that: (1) the State failed to prove beyond a reasonable doubt that he was guilty of first-degree murder and attempted first-degree murders; and (2) the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 On June 13, 1999, at approximately 1:45 a.m., Robert Ayala (Robert) was fatally shot near the intersection of Marshfield Avenue and 37th Street in Chicago, Illinois. Thereafter, the defendant and co-defendants James Valek (co-defendant Valek) and Alfred Martinez (co-defendant Martinez) were arrested. On July 14, 1999, the defendant and co-defendants Valek and Martinez*fn2 were charged with first-degree murder, conspiracy to commit murder, attempted first-degree murder, and aggravated discharge of a firearm.
¶ 4 In January 2004, the defendant was convicted in a jury trial of first-degree murder and two counts of attempted first-degree murder. Subsequently, the defendant was sentenced to 45 years of imprisonment for first-degree murder, and two concurrent 20-year terms for attempted first-degree murder. On December 1, 2006, this court reversed and remanded the matter for a new trial, holding that the trial court violated the defendant's confrontational rights by admitting into evidence the grand jury testimony of a witness, Patricia Berryman, who had died of natural causes prior to trial. People v. Carrizalez, No. 1-04-2196 (2006) (unpublished order under Supreme Court Rule 23).
¶ 5 On March 29, 2010, a jury trial commenced for the retrial of the defendant. The following relevant evidence was adduced at the defendant's retrial. Adrian Vasquez (Adrian) testified for the State that he lived at 3659 South Marshfield Avenue in Chicago. Adrian testified that he was the longtime friend of Robert, the deceased victim, and that Robert lived "[d]own the block" on Marshfield Avenue. On June 12, 1999, between 5 p.m. and 5:30 p.m., Adrian was in front of his house when a mustard yellow, "Al Bundy looking" car drove slowly by his house and then sped away. According to Adrian, it was still daylight at that time and he noticed that the yellow car was driven by a white person, and that the front and rear passenger seats were each occupied by a Hispanic individual. However, Adrian was unable to see the faces of the three individuals in the yellow car. Between 6 p.m. and 7 p.m., Robert arrived at Adrian's home to help clean his basement. Within an hour after Robert's arrival, Adrian saw the yellow car, which carried the same number and races of individuals as he had previously observed, traveling southbound on Ashland Avenue. At approximately 9 p.m., Adrian and Robert finished cleaning Adrian's basement. Adrian then hosted a party in the garage of his residence, which was located in an alley between Marshfield and Ashland Avenues. Between 11 p.m. and 12 a.m., Adrian's neighbor, Juan Rios (Juan), joined the party. Shortly thereafter, Adrian again noticed the yellow car, with three occupants, traveling southbound on Ashland Avenue. On June 13, 1999, at approximately 1:30 a.m., David Mayora (David) arrived as a guest at the party. Adrian testified that shortly after David's arrival, Adrian's car alarm sounded. Adrian's car was parked on the corner of 37th Street and Marshfield Avenue. Adrian, Robert and David then walked to the front of Adrian's home to inspect Adrian's car. After the trio determined that Adrian's car was fine, they started walking eastbound on 37th Street to rejoin the party. At that moment, the yellow car, with its headlights off and with only two occupants--the driver and the rear passenger--stopped at the corner of 37th Street and Marshfield Avenue. Adrian then heard several gunshots, after which he and his friends ran towards his garage for safety. Once Adrian sought shelter in his garage, he noticed that Robert was missing, and he later found Robert lying dead on 37th Street from a bullet wound to the back of his head. As Adrian checked Robert's physical condition, he noticed the yellow car, carrying only the driver and rear Hispanic passenger, drive westbound on 37th Street "at an idle speed just to stop and see what happened." While Adrian waited for the police to arrive, he again noticed the yellow car traveling northbound on Ashland Avenue with only the driver and rear passenger. Adrian testified that the police later took him to the area near 59th and Richmond Streets in Chicago, where he identified a vehicle as the yellow car he had seen before and after the shooting. Adrian further testified that neither he nor Robert belonged to a street gang and that Adrian and his friends did not possess any guns that night.
¶ 6 Juan testified that after midnight on June 13, 1999, he walked from his home on Marshfield Avenue to a party held in Adrian's garage. As Juan walked down the alley near Marshfield Avenue, he noticed a "yellowish" car traveling southbound on Ashland Avenue. He testified that the yellow car caught his attention because it "came almost to a stop" at a green traffic light and then "took off." About 10 to 15 minutes after Juan arrived at the party, he saw the yellow car a second time traveling on Ashland Avenue, to which Adrian stated, "[t]here goes that yellow car again." At approximately 1 a.m., Adrian's car alarm sounded in front of Adrian's residence. Subsequently, Adrian, Robert and David exited the garage and walked to Marshfield Avenue, where Adrian's car was parked, while Juan and Adrian's wife stayed in the garage. About five minutes after the trio left to inspect Adrian's car, Juan walked to 37th Street through the alley located between Marshfield and Ashland Avenues to check on his friends. At that point, Juan noticed that the trio was walking back toward him. Juan then saw, on the corner of Marshfield Avenue and 37th Street, a "shadow with his arm extended halfway across the fence" and pointed at the backs of his friends. Before Juan could warn his friends, the "shadow" fired five or six gunshots. Juan testified that the first bullet traveled close to his ear and that the second bullet flew over his head and hit a truck behind him. Juan further stated that neither he, Adrian nor Robert was a member of a street gang and that he and his friends did not display any weapons at the time of the shooting. On cross-examination, Juan testified that he could not see how many occupants were in the yellow car. He further noted that the "shadow" was about 80 feet from him and 40 feet from his friends at the time of the shooting.
¶ 7 Daniel Talavera (Daniel) testified on behalf of the State as to his encounters with the defendant on the night of the shooting. Daniel testified that, in June 1999, he was a member of the street gang Satan Disciples.*fn3 The Satan Disciples controlled the territory north of 35th Street, while its rival street gang, the Latin Counts, controlled the territory south of 35th Street. On the evening of June 12, 1999 and the early morning hours of June 13, 1999, Daniel was at a nearby park with other Satan Disciples gang members, including the defendant and co-defendants Valek and Martinez. Daniel testified that at that time he was a "heavy drinker," and he had consumed 12 to 24 cans of beer and some gin on the night of the shooting. At approximately 1:30 a.m., Daniel and the defendant had a conversation at the park, during which the defendant informed him that he was "going to go south on 35th and see if the clowns were out." Daniel testified that the term "clowns" was a derogatory reference to members of a rival gang, Latin Counts. After this conversation, the defendant walked toward co-defendant Valek's car. After the defendant left, Daniel went to a local bar at approximately 2 a.m., where he was later joined by co-defendants Valek and Martinez. Daniel testified that the defendant, who was shirtless and looked tired and sweaty, arrived at the bar separately on a 10-speed bicycle, which belonged to a woman named "Pat." Daniel stated that Pat lived at 34th Street and Ashland Avenue and that she stored the bicycle in the hallway of her apartment building. Daniel testified that once the defendant arrived at the bar, the defendant asked co-defendant Valek why he did not pick the defendant up at 36th Street and Ashland Avenue. The defendant also stated that he stole the bicycle in order to get to the bar. At approximately 4 a.m., the police arrived at the bar and arrested the defendant, co-defendant Martinez, and Daniel. Daniel testified that he was never charged with Robert's murder. Although Daniel was convicted of an unrelated felony drug charge in 1999, he was not promised anything in exchange for his testimony. At trial, Daniel identified photographs of a yellow car as co-defendant Valek's vehicle--a 1977 Chrysler Plymouth Volare.
¶ 8 Co-defendant Valek testified for the State that, in January 2004, he pled guilty to conspiracy to commit first-degree murder of Robert and to two counts of attempted murder of Adrian and Juan. As a result of the guilty plea, co-defendant Valek was sentenced to 22 years of imprisonment. Co-defendant Valek testified that in June 1999, he was a member of the Satan Disciples gang, that he frequented a park near 33rd Street and Ashland Avenue, and that he owned a "yellow or beige" Plymouth Volare, which he positively identified in several photographs at trial. In the evening of June 12, 1999 and the early morning of June 13, 1999, he and other Satan Disciples members, including the defendant, went to Lake Michigan and the park. While at the park, at approximately 12:30 a.m., the defendant stated, "let's go see if the clowns are out," which co-defendant Valek interpreted to mean "we were going to go over there and beat them up or either going to shoot them, shoot at them." Co-defendant Valek, co-defendant Martinez and the defendant then entered co-defendant Valek's car. Co-defendant Valek testified that he was Caucasian and was the driver of the car, that the defendant was Mexican and sat in the front passenger seat, and that co-defendant Martinez was Mexican and rode in the backseat. They then drove into Latin Counts territory to the area of 37th Street and Marshfield Avenue, where co-defendant Valek slowed the speed of the car and the defendant reached across the driver's side and turned off the headlights. At some point, the defendant exited the car and co-defendant Valek saw the defendant carrying a "flash of a gun." After the defendant exited the car, co-defendants Valek and Martinez argued over whether they should pick the defendant up in the car. Co-defendant Martinez was in favor of retrieving the defendant at a rendezvous point on 36th Street, while co-defendant Valek refused to do so for fear of being connected to the shooting. Co-defendant Valek then drove around the block to 37th Street and Ashland Avenue, where he observed "four or five guys" yelling and displaying gang signs," and he heard several gunshots. Following the shooting, co-defendants Valek and Martinez went to a local bar where they met with Daniel. Co-defendant Valek then drove home to 5955 South Richmond Street, where he switched cars and returned to the bar in Daniel's car at approximately 2:15 a.m. Co-defendant Valek testified that he switched cars because he was "scared that somebody saw [his] car on the scene" and that he would be identified by his car. After co-defendant Valek returned to the bar, the defendant, who was shirtless and sweating heavily, arrived on a bicycle. The defendant then argued with co-defendant Valek about why he did not pick the defendant up in the car, to which co-defendant Valek explained, "I wasn't going to pick him up because somebody was shot and laying on the floor, I'm not going to get caught for somebody that is dead." Subsequently, the police arrived at the bar and arrested the defendant, co-defendant Martinez and Daniel. Co-defendant Valek was arrested later at his home, and he initially told the police that he knew nothing about the shooting. However, he subsequently admitted to the police in a handwritten statement that he was the driver of the car, that the defendant held a revolver in his hand when he exited the car, and that the defendant stated "I'm going to do it" prior to the shooting. At trial, co-defendant Valek identified several photographs of an apartment building located at 33rd Street and Ashland Avenue, where Patricia Berryman lived, and testified that fellow gang members used the building's vacant second-floor unit as a "party house." Co-defendant Valek further testified that, prior to the defendant's trial, he wrote a letter to the prosecutor in an attempt to reduce his sentence. However, the prosecutor informed co-defendant Valek that nothing could be done about his sentence. Co-defendant Valek testified that he was not given any consideration in exchange for his trial testimony against the defendant.
¶ 9 Sergeant James Ballauer (Sergeant Ballauer) testified that on June 13, 1999, at approximately 1:45 a.m., he and his partner responded to the scene of the shooting, where Robert lay dead on a sidewalk. Sergeant Ballauer spoke with Adrian, who provided a description of the yellow car. Sergeant Ballauer then issued a radio "flash message" to other police officers about the description of the suspect's vehicle. Thereafter, Sergeant Ballauer spoke with a woman named Patricia Berryman at her residence at 3358 South Ashland Avenue. Sergeant Ballauer later recovered a woman's 10-speed bicycle near the bar where the defendant was arrested.
¶ 10 Officer Terrence Johnson (Officer Johnson) testified that on June 13, 1999, at about 1:45 a.m., he responded to Sergeant Ballauer's radio "flash message" and recognized the car description as one that matched a vehicle he had stopped two weeks prior to the shooting. During the previous traffic stop, Officer Johnson filled out a "contact card" which listed all of the occupants of the yellow car--including that co-defendant Valek was the driver and registrant of the vehicle. Officer Johnson shared this information with his fellow officers at the scene of the shooting. He and Adrian then traveled to co-defendant Valek's home at 5955 South Richmond Street, where they located the yellow car. Upon seeing the yellow car, Officer Johnson recognized it as the same vehicle he had encountered during the traffic stop, put his hand on the car's engine, and noted that it was warm. Adrian then positively identified the yellow car as the vehicle he had observed fleeing the scene of the shooting. At approximately 4 a.m., Officer Johnson visited the local bar to locate co-defendant Valek. At the bar, he arrested the defendant, co-defendant Martinez and Daniel. Officer Johnson further testified that the arrest report listed the defendant's occupation as an automobile mechanic.
¶ 11 Forensic investigator Joseph Bembynista (Investigator Bembynista) testified that he processed the crime scene shortly after the shooting. He found a bullet hole in the rain gutter of a building located at 1616 West 37th Street, found bullet damage to a parked truck located east of Robert's body, and recovered a fired bullet in the alley. Investigator Bembynista believed that the shooter used a revolver rather than a semiautomatic weapon because no shell casings were found. He did not recover any latent fingerprints from the yellow car.
¶ 12 Wah Chu (Chu) testified that he owned the apartment building located at 3358 South Ashland Avenue. In June 1999, Patricia Berryman was the tenant of one of the two second-floor units in the building, while the other second-floor unit was vacant. Chu testified that he had encountered problems with people entering the vacant unit without permission. He further stated that Patricia Berryman sometimes stored her bicycle in the entranceway on the first floor of the building.
¶ 13 Retired police forensic investigator Daniel Principato (Investigator Principato) testified that on June 13, 1999, at about 7:35 a.m., he administered a ...