Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 09 CR 21812 The Honorable Matthew E. Coghlan, Judge Presiding.
JUSTICE HYMAN, Presiding Justice Neville and Justice Mason concurred in the judgment and opinion.
¶ 1 Defendant Berly Valladares provided a gun to a fellow gang member, Narcisco Gatica, who was upset after being denied entrance to a neighborhood party. Gatica then fired the gun into a crowd at the party, killing Francisco "Frankie" Valencia and seriously injuring Daisy Camacho. After a jury trial, Valladares was convicted, under an accountability theory, of first degree murder and aggravated battery with a firearm. Valladares's position, from the time of his police interview through his trial testimony, was that he had never been told, nor did he have any idea, that Gatica would use the gun he provided to commit a crime. Valladares was sentenced to 55 years for first degree murder, which included 15 years for the enhancement, armed with a firearm, and a consecutive sentence of 15 years for aggravated battery with a firearm.
¶ 2 Valladares contends his conviction must be reversed, claiming he received ineffective assistance of counsel because trial counsel failed to meet with him, did not file a motion to suppress his statements to the police, and agreed to the admission of prejudicial gang evidence. Valladares also contends the jury instructions did not properly instruct the jury on the law of accountability. Lastly, Valladares contends his conviction cannot stand where the State failed to present any corroborating evidence, other than his own statements, to prove corpus delicti, in other words, that a crime occurred.
¶ 3 Based on a thorough review of the record, we are unpersuaded trial counsel's representation was ineffective where counsel chose to proceed without filing a motion to suppress Valladares's statements to the police or limit the admission of gang evidence, decisions, in light of the defense theory, properly considered by the trial court to be ones of trial strategy. We also find the trial court's question concerning accountability during voir dire legally permissible and hold the trial court properly refused to instruct the jury with the defense requested instruction, where an Illinois Pattern Jury Instruction on accountability informed the jury of the law. Lastly, the evidence, when viewed in a standpoint most favorable to the State, supports Valladares's convictions where the prosecution offered sufficient evidence of corpus delicti of first degree murder and aggravated battery with a firearm. Accordingly, we uphold Valladares's convictions.
¶ 4 BACKGROUND
¶ 5 Jacqueline Iberra testified at trial that on Halloween, October 31, 2009, she rented a house at 1752 N. Rockwell, Chicago, to throw a birthday party for her then-boyfriend Marco Rios. A gate blocking the gangway limited access to the house. The party began at 10:30 p.m. and most of the invited guests came from Elgin, dressed in costume. Around 12:30 a.m., Iberra learned that three uninvited men, including Gatica, were trying to enter the party through the gangway. She had never seen the men before. Iberra and Rios asked them to leave and when the men lingered for a few minutes, escorted them out. No physical altercation occurred.
¶ 6 A short time later, Iberra heard what she thought were firecrackers. She ran to the door and saw guest Alejandro Sanchez carrying Daisy Camacho inside. Camacho was bleeding from her neck. Iberra went outside where she saw Frankie Valencia, who had come to the party with Camacho, sitting next to a wall and bleeding. Neither Camacho nor Valencia was involved in asking the three uninvited men to leave.
¶ 7 Marco Rios testified that he and Iberra controlled access to the party by opening and closing the gate. After escorting the three uninvited men from the party, he heard five gunshots. Rios ran outside and saw Camacho bleeding from her neck and Valencia holding his chest.
¶ 8 Alejandro Sanchez testified he arrived at the party around 1 a.m. expecting to see Manuel Molina and Camacho. He called Molina to come open the gate for him and walked through the gangway with Molina, Camacho, and Valencia before hearing four to six gunshots coming from the gate. After he saw that Camacho had been shot, he carried her inside. Sanchez was unable to identify the shooter.
¶ 9 Camacho testified concerning the events leading up to the moment she realized she and Valencia had been shot. Camacho and Valencia attended DePaul University together. The party was thrown by Camacho's high school friends. She testified she did not see the shooter.
¶ 10 Valencia was shot three times–twice in the chest and once in the arm. Dr. Arangelovich testified Valencia died from multiple gunshot wounds and that the manner of death was homicide.
¶ 11 Chicago police forensic investigator Joseph Dunigan arrived at the scene around 3:15 a.m. Five fired shell cases were recovered from the front yard of the property. A little over a block away, at 1844 N. Rockwell, Dunigan recovered a semiautomatic firearm from under the porch. No latent impressions or fingerprints suitable for comparison were recovered from the firearm. The parties stipulated that the recovered firearm matched the fired bullets, five fired shell cases, and a fired bullet jacket fragment found at the scene as well as bullets found in Valencia's body.
¶ 12 The parties stipulated that a video recording system was operating in the area of 1752 N. Rockwell. One camera captured images of the sidewalk and surrounding area, one camera captured images of the gangway between 1752 and 1754 N. Rockwell, and one camera captured images from the alley behind 1752 and 1754 N. Rockwell. The individuals on the video were not identifiable.
¶ 13 The parties also stipulated to the records of Valladares's Sprint Nextel cellular telephone and Gatica's T-Mobile cellular telephone. FBI special agent Joseph Raschke performed an analysis of the two phones for the period from 12:44 a.m. to 1:48 a.m. on November 1, 2009, and plotted out the geographic locations of the phones. In his opinion, the two phones were consistently co-located in close proximity to each other and the crime scene. There were a total of eight calls between the two phones from 12:45 to 1:46 a.m., four from Valladares's phone and four from Narcisco Gatica's phone, each lasting under a minute.
¶ 14 Chicago police detective Michael Landando was assigned to the case on November 2, 2009. He reviewed reports and videotapes showing the front and rear of the rented house.
¶ 15 The detectives concentrated their investigation on the members of the Maniac Latin Disciples (MLD) gang because there were two factions of the gang in that area of Rockwell. Detective Landando testified he interviewed several MLD members. The detectives spoke with individuals who stated they had seen Valladares walking with Gatica around the time of the shooting. Eliezer "Peanut" Contreras, who did not testify at trial, told detectives he saw Gatica holding a gun and fire it at the rented house. He said he did not see Valladares hand a gun to Gatica. Jovanny "Magic" Carrera, who also did not testify at trial, told detectives he was a few houses down from the rented house at the time of the shooting and that he saw Valladares and Gatica walking southbound on Rockwell and then heard gunshots a few minutes later. He did not see the shooting, but heard from others that Gatica had been the shooter.
¶ 16 On the morning of November 3, Detectives Landando and John Valkner went to Melrose Park to interview Valladares at his place of work. Detective Landando told Valladares he was investigating a homicide that took place on Halloween night on Rockwell and that because several people had seen Valladares during the shooting, Detective Landando wanted to interview him. Valladares agreed to accompany the detectives and talk with them. Detective Landando drove Valladares to Area 5 police headquarters.
¶ 17 Detective Landando testified that during the ride, and before any conversations, he advised Valladares of his Miranda rights because the police were unsure of the extent of Valladares's knowledge or involvement in the shooting. Valladares acknowledged he understood his rights and indicated he would talk with the detectives. Valladares stated he was a member of the MLD gang and that on the night of the shooting, he had been at North and Washtenaw drinking. Around midnight, as he was walking northbound, he saw four fellow gang members, who he identified as Joe, Peanut, Silencer and Mickey. Valladares stated Mickey told him he had been pushed and asked Valladares to get a gun. Valladares thought Mickey might have been pushed by a rival gang member, a Cobra or Spanish Lord. Valladares told the detectives they would probably find his fingerprints on the gun because he gave it to Mickey. Detective Landando testified that at this point in Valladares's statement, he became a suspect and was placed under arrest. Valladares was not questioned any further until they arrived at Area 5.
¶ 18 Detective Landando testified Valladares "readily agreed" to go to Area 5 with the detectives and that he was cooperative, answering all the questions in the car without hesitation. Detective Landando stated he had no reason to believe Valladares would have stopped talking about the incident on his own and that he stopped questioning Valladares in the car because he wanted to preserve what Valladares said.
¶ 19 At Area 5, the detectives activated the audio and video recording equipment and placed Valladares in an interview room. Valladares's subsequent conversation with the detectives was recorded and the video was published to the jury. Detective Landando testified Valladares never indicated he did not want to continue speaking with the detectives about the incident.
¶ 20 In his videotaped statement, taken at 9:10 a.m. on November 3, after indicating he understood his Miranda rights, Valladares reiterated that he was walking north when he encountered Mickey and other fellow gang members. Mickey said, "this motherfucker pushed me, " and "this guy put hands on me." Valladares explained he thought Mickey meant the Cobras or Spanish Lords. Mickey told Valladares to "go get the stuff, " which Valladares stated meant the gun. While Valladares loaded the gun with seven or eight bullets, a car approached with several people in it, who Valladares felt were "gonna come shoot." Valladares handed the gun over to Mickey "no questions asked" because if he did not, "it all comes to me." He explained that if a fellow gang member was hurt, he would be blamed.
¶ 21 After Valladares gave Mickey the gun, a group gathered. Valladares stated he walked with the group without knowing where they were going. Valladares believed Mickey wanted to "maybe do a hit or scare some–I mean I don't know." Later, Valladares stated, "never, I never knew it was, it was gonna happen." Valladares admitted he knew there was going to be some kind of altercation, but did not know it would be at the rented house on Rockwell. When asked if he knew the shooter would shoot the gun, Valladares responded, "[w]ell, definitely if it lead to that point, you know where–let's say a rival gang member–comes in those are the actions that use probable cause–you want to know whether they shooting or you're getting shot." Valladares stated no one told him what house they were going to or who the intended victim or victims would be; only that a gun was needed. Valladares claimed he did not know where the shooter was going to shoot until after the shots were fired. Valladares stated he did not see Mickey pass the gun to Gatica.
¶ 22 When Valladares heard gunshots, he wondered whether he was getting shot at or his fellow gang members were doing the shooting. Valladares stated he could not "exactly" tell the detectives who the shooter was, calling him "ChiChi." Later, Valladares admitted seeing Gatica fire the gun. At the time, Mickey was in front of Valladares and Gatica to the side. Valladares heard shots and everyone scattered. Valladares ran southbound. He did not ask for the gun back. Valladares returned Gatica's call on his cell phone and Gatica said he had looked for the gun, but could not find it. Valladares looked for the gun and admitted that if he had found it, he would have thrown it away or sold it.
¶ 23 Valladares's mother told him someone had been killed during the shooting. He told his mother, "I didn't know he was gonna do it. What am I supposed to do, tell him no and then things happen and then what, you gonna end up seeing me with a sword in my eye, maybe a fractured rib." Valladares then provided the detectives Gatica's cell phone number.
¶ 24 Later, the detectives confronted Valladares with the fact that Gatica confessed and had no reason to lie about who gave him the gun. Valladares then admitted that he gave the gun to Gatica and that Mickey never touched it.
¶ 25 The detectives pointed out, and Valladares acknowledged, that on the video, the group slowed down in front of the rented house. Valladares denied there was any conversation among the group about what they were doing. Detective Landando testified that Valladares identified a photograph of Gatica as the shooter. Valladares lived about a block north of the shooting.
¶ 26 Valladares testified at trial. He claimed that as a member of the MLD gang, he received orders from higher ranking members and that he had no role in decision making. Valladares testified there were 5 to 10 higher ranking members than him, as well as the gang governor. Valladares admitted he ran the Talman Wabansia section of the MLD, but added that the governor also ran the section. Valladares testified he gave orders to lower ranking gang members, but that if he disobeyed the governor's rules, he would be "disciplined." In October 2009, Valladares was the gun holder for the gang. His role meant that if any member of the gang requested a gun, he was to provide it. Valladares testified that he could not refuse to give a gang member a gun or he would be disciplined. If Valladares refused to supply a gun, he was responsible for anything bad that happened to the gang member requesting the gun. Valladares was responsible for deciding how much ammunition to load in the gun, which depends on why the person was requesting it. Valladares testified he thought Gatica requested the gun because of a rival gang dispute, either with the Spanish Lords or the Cobras. He said that he knew the reason the gun was requested was for retaliation, although no one said anything about gang retaliation.
¶ 27 Valladares testified that his statement to the police explained what happened on the night of the shooting and that he was cooperative with the police at all times. Initially he told the police he gave the gun to Mickey, but that was untrue. He lied, he admitted, because he was "scared" and "didn't want to get involved." Valladares testified that he did not know for certain there would be a shooting, only that it was a possibility if something else happened. Valladares testified that during the shooting, he was one to two feet from Gatica and that Gatica gave no prior indication of what he intended to do.
¶ 28 Valladares testified that even though he was walking with his fellow gang members toward the rented house, he was not going with them, but rather, to an area where two girls were waiting for him. Valladares acknowledged he never mentioned that to the detectives. Valladares said he wore a hooded sweatshirt with the hood over his head to cover his identity while he walked south of Rockwell toward the house. He first admitted, then denied, that it was because he was afraid the girls he was going to see would recognize him.
¶ 29 After denying being in the surveillance video of the shooting, Valladares identified himself as being the person behind Gatica in the video. Valladares acknowledged that the individual in front of Gatica slowed down even before Gatica made a move toward the gate by the house. Valladares testified he saw Gatica shoot the gun, and that after the shooting, he ran home.
¶ 30 Valladares testified that when the police came to his workplace a few days after the shooting, he knew they had found out where he was the night of the shooting. Valladares testified he knew his fingerprints were on the gun because he gave it to Gatica. Valladares did not think the police would find the shooter and that is why he lied about giving the gun to Mickey.
¶ 31 Motion for New Trial With Substituted Counsel
¶ 32 Following his convictions for first degree murder and aggravated battery with a firearm, Valladares moved for a new trial with substituted counsel. At the posttrial hearing on his motion, Valladares's mother testified that she did not hire Jack Wilk as trial counsel. She acknowledged that she met Wilk at David Weiner's office and that Wilk appeared in court on Valladares's behalf before trial. She further acknowledged that she did not complain about Wilk's representation until after Valladares's conviction.
¶ 33 Weiner testified he informed Valladares's mother that either he or Wilk, who served as co-counsel, would visit Valladares. Weiner was retained on January 20, 2010. Weiner admitted that he did not visit Valladares in jail, but Wilk did on January 21 and again on September 20, three days before trial. Weiner acknowledged he never showed Valladares the videotaped recording of his statement to the police, but testified he did show Valladares the transcript of the recording at a court date. Weiner saw Valladares every court date in the lockup. During those times, he showed Valladares the police reports, the statement transcript, and discussed the case with him. Weiner also spoke with Valladares over the phone several times, accepting his collect calls from jail. Weiner acknowledged that the jail records calls from inmates, but testified that did not keep Valladares from discussing the case, including "exculpatory statements."
¶ 34 Weiner testified that each time he spoke with Valladares about the case, Valladares's discussion of the facts was consistent with his recorded statement to the police. Weiner believed Valladares's statement should be admitted at trial to corroborate the defense theory. According to Weiner, Valladares convinced him that he merely passed the gun to Gatica and had no idea that Gatica had been at a party and was going to use the gun to commit a crime. Weiner believed that based on the law of accountability and the requirement that there be a finding of specific intent, Valladares's statement would be helpful in convincing the jury that Valladares was not accountable because he did nothing other than pass off the gun.
¶ 35 Weiner testified that "all along" Valladares wanted to testify and that Valladares made the decision to do so. Because Valladares was going to testify, Weiner was of the opinion that even if his statement was suppressed, it could be used in rebuttal. Moreover, the statement's admission would benefit Valladares by being a prior consistent statement.
¶ 36 Due to the availability of witnesses who could testify they saw Valladares hand the gun to Gatica and walk with him to the scene of the crime, if Valladares's statement had been suppressed, and the witnesses and Valladares testified, Weiner believed Valladares's statement would have come in as impeachment evidence in addition to the witness testimony. For Weiner, Valladares's testimony and earlier statements to the police gave the jury an explanation for Valladares's actions, which was necessary to defeat the State's case.
¶ 37 Weiner read the arrest reports and viewed the recording of Valladares's statement before trial. He knew that an arrest without a warrant or probable cause may be illegal and that a subsequent statement may be suppressed. But, he did not file a motion to quash the arrest because Valladares voluntarily spoke with the detectives in their car and Valladares's statements were not part of a custodial situation. And even though Wilk's notes stated that in the interrogation room at the police station Valladares "was ...