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The People of the State of Illinois v. Roberto Almodovar

January 18, 2013

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
ROBERTO ALMODOVAR,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Illinois. No. 94 CR 24318 (01) Honorable James B. Linn, Judge Presiding.

The opinion of the court was delivered by: Justice Taylor

2013 IL App (1st) 101476

JUSTICE TAYLOR delivered the judgment of the court, with opinion.

Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Roberto Almodovar appeals from a judgment denying his motion to file a successive post-conviction petition.

¶ 2 Defendant was charged with involvement in a 1994 drive-by shooting, due in part to the investigative efforts of Detective Reynaldo Guevara. Following trial, defendant was found guilty of first degree murder, attempted murder, and aggravated battery with a firearm, and he was sentenced to a term of natural life in prison. In 1998, defendant filed his first petition for post-conviction relief, contending that the prosecution had failed to produce material evidence that would have exculpated him, in violation of Brady v. Maryland, 373 U.S. 83 (1963). In particular, defendant alleged that the prosecution failed to disclose that key prosecution witnesses Jackueline Grande and Kennelly Saez, who identified defendant in a lineup and at trial, had been shown a photogaph of the defendant by Detective Guevara shortly before they viewed the lineup. After a hearing, the circuit court denied the petition.

¶ 3 In 2010, defendant filed a pro se motion for leave to file a successive post-conviction petition. This motion is the subject of the instant appeal. In this motion, defendant alleged that newly discovered evidence supported his Brady claim, namely, evidence that Detective Guevara was involved in a pattern of flagrant misconduct whereby he manipulated witnesses to falsely identify individuals in multiple other cases. The circuit court denied defendant's motion, and defendant now appeals. For the reasons that follow, we reverse and remand.

¶ 4 I. BACKGROUND

¶ 5 It is undisputed that in the early morning hours of September 1, 1994, Amy Merkes, Jorge Rodriguez, Jackueline (Jackie) Grande, and Kennelly Saez were the victims of a drive-by shooting on Chicago's west side. Amy and Jorge were fatally shot, and Jackie was shot in the back but survived.

¶ 6 Defendant and his co-defendant William Negron were charged with the first degree murders of Amy and Jorge, the attempted first degree murders of Jackie and Kennelly, and the aggravated battery with a firearm of Jackie. The State's theory of the case was that the shooting was motivated by street gang warfare. According to the State, both of the defendants were members of the gang known as the Insane Dragons (Dragons), which was then at war with the gang known as the Maniac Latin Disciples (Disciples). The shooting took place in Disciple territory, and two of the victims, Jorge and Kennelly, were members of the Disciples. Defendant, meanwhile, raised an alibi defense, alleging that on the night of the shooting, he was at home with his aunt and his girlfriend. He also denied being a Dragon at the time of the shooting.

¶ 7 The defendants were given a joint trial. Because defendant's claims in this appeal concern the validity of the evidence supporting his conviction, the salient facts presented at trial shall be discussed below. The State had no physical evidence directly linking the defendants to the crime; accordingly, its case centered primarily around the testimony of the two surviving victims, Kennelly and Jackie, and their identification of the defendants.

¶ 8 Kennelly testified that he had been a member of the Disciples for approximately a year and a half prior to the shooting. He stated that, at the time of the shooting, the Disciples and the Dragons were at war over territory -- specifically, the street upon which Kennelly lived. He described the corner where he lived as a neutral corner, but one which mostly Disciples passed through.

¶ 9 Kennelly testified that at approximately 12:30 a.m. on September 1, 1994, he and his friends Amy, Jorge, and Jackie were sitting on his front doorstep and talking. He stated that the area around the doorstep was "very open," with lights in front of the doorway and not many trees. Near 1 a.m., he saw a blue Oldsmobile speed by. It went into an alley, then reversed back toward them and came to a stop in front of Kennelly's porch.

¶ 10 Kennelly stated that he walked toward the car, stopping five or six feet away. At that time, he said, he could see the driver and the rear passenger on the driver's side, whom Kennelly identified in court as Negron and the defendant, respectively. Kennelly said that he had not previously met either of them at the time of the shooting.

¶ 11 According to Kennelly, the defendant said, "What's up, folks." Kennelly explained that this is a typical greeting used by members of gangs that are part of an alliance known as the "folks." Kennelly did not respond in kind, because he was frightened that defendant was not actually a member of the folks. Instead, he said, "Who's that?" As soon as he spoke, the defendant pulled out a gun and pointed it at him. Kennelly took cover behind another parked car on the street. He heard eight or nine gunshots, and then he heard the car skidding away. He got up and ran inside, whereupon he found that Amy, Jorge, and Jackie had all been shot.

¶ 12 Subsequently, on September 12, 1994, Kennelly testified that the police called him and Jackie to see a lineup of suspects. The lineup was conducted by Detective Guevara. Kennelly testified that Detective Guevara did not at any time tell him who to pick, and he and Jackie viewed the lineup separately. In that lineup, Kennelly identified both the defendant and Negron.

¶ 13 Counsel for the State then elicited testimony from Kennelly about a recantation of his identification that he made in March 1995. Kennelly stated that his gang leader Ki Ki ordered him to go to the office of Melinda Power, who at the time was counsel for the defense, and tell her that he could not identify the assailants. Kennelly did as he was told. He testified that the statement he gave to Power on that day was a lie. He said that if he had refused to follow orders, the gang would have given him a "violation," which is where a "group of guys beat you up for like three or four minutes head to toe." On cross-examination, Kennelly admitted that when he gave his statement to Power, he averred that he was not being pressured or forced into making that statement.

¶ 14 Kennelly further stated on cross-examination that he was currently in jail for violation of his probation for an unrelated robbery. A week before trial, while he was in jail, an assistant State's Attorney came to speak to him, and that is when Kennelly first professed that his March 1995 recantation had been a lie. Kennelly admitted that, prior to that conversation, he had never No. 1-10-1476 made any indication that he had been threatened or intimidated into making his March 1995 recantation. On redirect examination, he testified that the assistant State's Attorney did not make any promises to him regarding the disposition of his own case in exchange for his testimony.

¶ 15 Jackie provided the State's second eyewitness account of the shooting. She testified that on the night of the shooting, she, Amy, Jorge, and Kennelly were sitting together by the main entrance door to the apartment building at 3920 West Cortland. While they were sitting there, Jackie observed a navy blue car passing by and turning into an alley. It stopped at the entrance of the alley, reversed back toward them, and stopped. Jackie testified that the car stopped for "enough time for me to look at them and recognize their faces." She identified the driver as Negron and the rear passenger on the driver's side as the defendant.

¶ 16 Jackie testified that one of the defendants (she was not sure which one) said, "What's up, folks." She saw Kennelly take a few steps toward the car and ask, "Who's that?" She then saw the defendant pull out a gun and start shooting at them. Kennelly fell to the ground. Jorge opened the door to the apartment building, and Jorge, Amy, and Jackie all ran inside.

¶ 17 According to Jackie, as the three of them were running up the stairway, Amy tripped. Jackie and Jorge helped Amy to her feet. Jackie attempted to continue up the stairs, but she was shot in the back. She began screaming and heard Amy screaming as well. Jorge, who was farther up the stairway, turned back and pushed Jackie to the ground, at which time he was also shot. Eventually Kennelly entered the building and helped Jackie up the stairs. She was later taken to the hospital for treatment of her injuries.

¶ 18 Jackie testified that after her release from the hospital, on September 5, 1994, Detective

Guevara came to her house and showed her a photo lineup consisting of 12 photographs. She stated that she identified a photograph of the defendant as the rear passenger who had started shooting at her, and she identified a photograph of Negron as the driver of the car. She did not recognize any of the other individuals in the photos. A week later, on September 12, 1994, Detective Guevara called her to come to the police station to view an in-person lineup. Kennelly came as well, but the two of them viewed the lineup separately. Jackie testified that there were seven people in the lineup, and she identified the defendant and Negron as the men who had shot at her. As with the photo lineup, Jackie testified that she did not recognize any of the other individuals in the in-person lineup.

¶ 19 The State also called Officer Robert Lohman, the first officer to arrive at the scene after the shooting. Officer Lohman testified that on September 1, 1994, at about 12:45 a.m., he was on patrol when a citizen named Juan Velez approached and told him that there had been a drive-by shooting at the corner of Harding and Cortland. He proceeded to the scene. He testified that although it was night, there was a streetlight and a light above the entrance to the apartment building, so he did not have any difficulty seeing what was going on. Inside the building, he found Amy lying dead on the landing, as well as Jorge and Jackie, who had both been shot but were both still alive at that time.

¶ 20 On cross-examination, Officer Lohman stated that after speaking with Velez, Kennelly, and Jackie, his only description of the offenders was that they were male Latinos, 16 to 20 years old, wearing Starter jackets. He had no information as to their hairstyle, complexion, or height.

¶ 21 The State also called Detective Guevara to the stand. Detective Guevara testified that he was involved in the investigation of the murders of Amy and Jorge. After speaking with Officers Olszewski and Siwa about his investigation and the circumstances of the crime, he obtained three photographs of Dragons, one of which was a photograph of defendant. He then spoke with gang crimes specialist Wyora and obtained a photograph of Negron. Using those photographs, Detective Guevara stated that he assembled a photo array consisting of six long-haired individuals, including the defendant, and six short-haired individuals, including Negron. To the best of his knowledge, the other individuals in the photo array were all gang affiliated.

¶ 22 Detective Guevara testified that on September 5, 1994, he went to Jackie's home to show her the photo array. He stated that he spread the photographs on her living room table, with the photographs of long-haired individuals on one side and the photographs of short-haired individuals on the other, and asked her if she recognized anybody from the night of the shooting. He testified that Jackie identified Negron as the driver and defendant as the back-seat passenger.

¶ 23 Detective Guevara stated that on September 11, 1994, he apprehended the defendant at a street corner frequented by Dragons. According to Detective Guevara, when he was performing the booking procedure, defendant identified himself as a Dragon. Early the next morning, Negron was also apprehended. That evening, Detective Guevara conducted an in-person lineup consisting of both suspects plus four or five other individuals. The individuals in the lineup were seated in a room with a one-way mirror, and Kennelly and Jackie were brought into the adjacent room one at a time. Detective Guevara testified that Kennelly identified the defendants with no hesitation, and likewise, Jackie also identified the defendants.

ΒΆ 24 On cross-examination, counsel for the defendants questioned Detective Guevara about the investigative procedure that led him to apprehend the defendants. Detective Guevara stated that he worked the third watch, which was from 3 p.m. to 11:30 p.m. When he arrived at work at 3 p.m. on September 1, 1994, he was assigned to the case. By that time, detectives on earlier watches had prepared reports about the case, as is typical; Detective Guevara read those reports to familiarize himself with the case. He testified that he then went to the crime scene and interviewed Kennelly, who told him that ...

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