Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 07 CR 16031. Honorable Maura Slattery Boyle, Judge Presiding.
Reversed and remanded.
Defendant's convictions for first degree murder of one man and the attempted murder and aggravated battery with a firearm of a second man during a gang-related incident were reversed and the cause was remanded for a new trial where the trial court erred in denying his motion to suppress statements he made to detectives during an interrogation, since defendant's response of " Not really. No." made immediately after he was given his Miranda rights and was asked whether he wanted to speak with the detectives and his later comment that he " ain't gonna say nothing about nothing," unequivocally showed that he had invoked his right to remain silent and that his right to remain silent was not scrupulously honored, regardless of the State's contention that defendant was " engaging in the conversation with the detectives" and had not clearly indicated that he did not wish to speak with the detectives, and on retrial, photographs from a MySpace page will be admissible to show the course of the police investigation, but the prejudicial captions are not admissible in view of the State's inability to show who wrote the captions; furthermore, a mug shot of defendant should be avoided on retrial because such evidence tends to inform the jury of defendant's unrelated criminal activity.
For Plaintiff-Appellee, Anita Alvarez, Cook County State's Attorney, Chicago, IL (Alan J. Spellberg, Christine Cook and Peter Maltese, Assistant State's Attorney, of Counsel).
For Defendant-Appellant, Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County, Chicago, IL (Rachel Moran, Assistant Appellate Defender).
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Oscar Flores was found guilty of the first degree murder of Victor Casillas and the attempted murder and aggravated battery with a firearm of Lionel Medina. Defendant was subsequently sentenced to a total of 80 years in the Illinois Department of Corrections.
[¶2] Defendant appeals, arguing that: (1) the trial court erred in denying his motion to suppress his July statements, which
were involuntary and were obtained in violation of his right to remain silent and his right to an attorney; (2) the trial court violated his constitutional right to present a defense when it barred him from presenting evidence of his suppressed May statements to police; (3) defendant was denied a fair trial when the trial court admitted prejudicial photos from MySpace without proper authentication and foundation; and (4) his trial counsel was ineffective for failing to object to testimony that defendant's photo was in a Chicago police database and he had previously been arrested.
[¶3] The shootings occurred around 8:30 p.m. on March 19, 2007, near West 30th Street and South Kildare Avenue in Chicago. Defendant was interrogated and gave statements in May and July 2007. In May, defendant was arrested and held nearly 50 hours in an interrogation room. Defendant eventually gave statements admitting that he was the shooter. In July, he was arrested again and interrogated by one of the same detectives. Defendant again admitted during questioning to being the shooter. Prior to trial, defendant moved to suppress both his May and July statements on the grounds that: (1) his May statement was obtained in violation of his right to counsel and his right to remain silent; (2) his July statement was obtained in violation of his right to remain silent; and (3) both statements were involuntary. At the hearing, neither party presented any witness testimony, but relied on the recordings of the interrogations. After viewing the recordings, the trial court granted the motion as to the May statements, finding that defendant explicitly asked for a lawyer and the detectives improperly reinitiated questioning 14 to 15 hours later. The court did not reach the question of whether the statements were involuntary.
[¶4] As to the July statements, the trial court held that defendant's May request for an attorney was no longer in effect. The court found that defendant did not invoke his right to remain silent because even though defendant responded, " Not really. No." when asked if he wanted to speak with the detectives, defendant " still [kept] engaging the detectives." The court concluded that defendant's Miranda rights were not violated. The court further found that the statement was voluntary and defendant's will was not overborne.
[¶5] Defendant filed a motion to reconsider and asked for a ruling on whether his May statement was voluntary. The trial court denied the motion to reconsider, but found the statements were voluntarily made. Defendant also filed a motion to suppress his statements on the basis that the recordings were inaudible, which the trial court denied. Defendant later filed a motion to reopen his motion to suppress his July statements, arguing that the statements were obtained in violation of his request for counsel. The trial court denied the motion, finding that the request for counsel was not clearly expressed.
[¶6] The State filed a motion in limine to bar defendant from introducing his May statements at trial. Defendant responded that he should be allowed to admit evidence of the May interrogation to explain why he confessed in July. The trial court granted the motion, finding that the suppressed statements were inadmissible hearsay. The court stated that defendant would have to satisfy an exception to the hearsay rule in order for any portion of the statements to be admitted.
[¶7] Defendant also filed a pretrial motion to exclude evidence of MySpace photographs depicting either defendant or Casillas, based on lack of foundation and prejudice. At the hearing, trial counsel
argued that " no one is going to be able to testify whose MySpace page they actually came from, or how the detectives were even allowed onto that website." Counsel asserted there was " no way to lay a foundation for this." The trial court allowed the admission of two photos at trial, finding that the photographs were not prejudicial and were relevant to the police's course of investigation.
[¶8] The following evidence was presented at defendant's October 2011 jury trial. The State presented the testimony of former assistant State's Attorney (ASA) Fred Sheppard. Sheppard testified that he obtained a videotaped statement from defendant at 1 a.m. on July 15, 2007. The videotape was played for the jury. Defendant stated that he joined the Latin Kings when he was 15 or 16. His nickname was " Little Panther" and no one called him " Little Rowdy."
[¶9] On the day of the offense, defendant met Macias at South Drake Avenue and West 26th Street. They got in a van driven by a friend. They rode around for a while, and the van was parked near Drake and 27th Street. A short time later, Macias suggested they get in the van. Macias got in the driver's seat and defendant was in the passenger seat. While driving, they stopped by Macias's house. Macias went in the house and returned with a white plastic bag, which he placed under the driver's seat.
[¶10] Macias then drove toward the Two-Six neighborhood. While they were driving, Macias took a gun out of the bag. Macias drove near 30th Street. Defendant said he asked what Macias was doing and Macias told him to stop being a " p***y." When they saw one or two " gangbangers" on the sidewalk, Macias handed defendant the gun and said, " come on p***y." Macias slowed down the van and defendant fired about four shots. Macias started to drive toward Latin King territory, but on the way, they saw a couple of men and one of the them made a gesture of disrespect to the Latin Kings. Macias told defendant to shoot them again, defendant then fired two or three shots. Macias then drove back to the Latin King neighborhood. He dropped defendant off and defendant left the gun with Macias.
[¶11] Lionel Medina testified at trial and admitted he was a member of the Two-Six gang. On March 19, 2007, he was near 28th Street and Kildare when he saw a two-tone blue and gray van at a stop sign. The passenger pulled out a gun and fired. Medina was shot, but survived. Medina was not able to make any identifications in two lineups.
[¶12] Leonardo Gonzalez testified that on March 19, 2007, he was walking with Victor Casillas on 30th Street when they heard gunshots. Both Gonzalez and Casillas were members of the Two-Six gang. They continued walking until he heard a vehicle behind them. He saw a blue and white van. According to Gonzalez, Casillas made a gang sign disrespectful to the Latin Kings. The passenger in the van fired two shots. Casillas started to run and Gonzalez fell down. He then saw that Casillas had been shot. Casillas fell down near 30th Street and Karlov Avenue.
[¶13] Gonzalez was unable to make an in-court identification. Gonzalez testified that he viewed a lineup in May 2007, but he equivocated on whom he identified. He said he identified Casillas's killer, but did not know if he identified defendant. Gonzalez admitted that he gave a statement to an ASA in May 2007. Two photographs were attached to the statement. One showed Casillas with the phrase " Lil Bonez Rotsk" written on it, which was disrespectful to Casillas. The second photo was of a Latin King with the caption " Little Rowdy." Gonzalez did not remember if he
identified " Little Rowdy" as the shooter. The State later called the ASA who took the statement and she testified that Gonzalez identified defendant as the shooter.
[¶14] Gonzalez also could not recall his grand jury testimony. The State later called the ASA who presented Gonzalez at the grand jury. She testified that Gonzalez identified defendant as the shooter.
[¶15] On cross-examination, Gonzalez stated that he did not get a good look at the people in the van because he was focused on the gun. Gonzalez testified that after the shooting, Antonio Casillas, Victor Casillas's brother and also a Two-Six member, showed him a photo with the caption " Little Rowdy Drake Two-Six." He said Antonio told him to identify the person in the photograph as the shooter. On redirect, Gonzalez maintained that he only identified defendant because Antonio showed him the photograph.
[¶16] Antonio Casillas testified that he was the older brother of Victor Casillas. Antonio stated that he had viewed a MySpace page and saw pictures of his brother and defendant. He said he recognized defendant as " Little Rowdy." He said he then looked through a Farragut High School yearbook and found " Little Rowdy" under defendant's name. Antonio viewed the MySpace pages with the help of his cousin because Antonio did not have a MySpace account. Antonio was given permission to use the password for the account of a friend of Antonio's cousin. He used this account to send a friend request to " Little Rowdy." When the friend request was accepted, he was able to view photographs. Antonio testified that he approached a police officer at his brother's funeral with defendant's name. A couple days later, two detectives came to his house and Antonio showed the detectives the MySpace page.
[¶17] Antonio was shown three photographs from the MySpace page. The first was a picture of defendant making gang signs with the caption " Lil Rowdy." The second was a photo of Casillas with a caption " Lil Bonez Rotsk," which Antonio testified meant " bragging about how [his] brother is dead." The third photo was another picture of Casillas with the caption, " Lil Bonez Rotsk!! hahaha 1 less Avers...hahaha." Antonio stated this caption was laughing and bragging about his brother's death.
[¶18] On cross-examination, Antonio admitted that nothing on MySpace identified defendant as " Little Rowdy." Antonio admitted he used to be a member of the Two-Six gang but had quit. He said he used the most recent yearbook, which was maybe the 2006 or 2007 Farragut High School yearbook, to make the connection. Antonio denied telling Gonzalez to identify defendant as the shooter.
[¶19] Lorena Aguilar and Elizabeth Hernandez each testified that at around 8 to 8:30 p.m. on March 19, 2007, they were walking on east on 30th Street, between Tripp Avenue and Kildare Avenue, when they heard gunshots. They looked behind them and saw a two-tone Astro van. When the van passed them, Aguilar stated that she saw two Hispanic males in their twenties and Hernandez said she also saw two Hispanic males in their twenties or older. Aguilar described the driver as wearing a dark sweatshirt and the passenger was wearing a white t-shirt and had short hair. Hernandez corroborated Aguilar's description. After the van passed them and was no longer in their view, they heard more gunshots. They ran toward the gunshots and saw a group
near a person who had been shot. Both women separately viewed a photo array, but testified that they could not identify the shooter. Aguilar denied that she made a tentative identification. Both women also separately viewed a lineup, but did not make an identification.
[¶20] Lizette Martinez testified that around 8 or 8:30 p.m. on March 19, 2007, she was walking her dog eastward on 30th Street with her neighbor, Rita Serrano, when she heard four gunshots coming from behind her. She looked and saw a blue and gray Astro van head east on 30th on to Kedvale. When the van passed her, Martinez saw two males. She said the passenger was wearing a white t-shirt. She heard two more gunshots. Martinez viewed a photo array and did not make an identification. She later viewed a lineup, but did not make an identification.
[¶21] Rita Serrano testified at trial for the defense. Her testimony corroborated Martinez's except that she described the passenger in the van as a bald Hispanic male wearing a white t-shirt. Serrano did not make an identification in either a photo array or a lineup.
[¶22] The parties stipulated that six cartridge cases were recovered at the scenes of the shootings, but no fingerprints were recovered from the casings.
[¶23] Following deliberations, the jury found defendant guilty of the first degree murder of Casillas and the attempted murder and aggravated battery with a firearm of Medina. The trial court subsequently sentenced defendant a term of 29 years for the first degree murder conviction with an additional 25-year firearm enhancement, 20 years for the attempted murder conviction, and 6 years for the aggravated battery conviction, to be served consecutively. Defendant received a total sentence of 80 years.
[¶24] This appeal followed.
[¶25] On appeal, defendant first argues that the trial court erred in denying his motion to suppress his July statements to police and the ASA. Specifically, defendant contends that his statements were taken in violation of his right to remain silent and his right to counsel. He also asserts that the statements were involuntary and his will was overborne. We first look at the circumstances in both the May and July interrogations in relevant detail.
[¶26] On May 24, 2007, the police arrested defendant and placed him in a locked interrogation room at Area 4 around 9:45 p.m. Defendant was 17 years old at the time of his arrest. Defendant was held in the interrogation room until approximately 11:15 p.m. on May 26, 2007. We note that the transcripts of all interrogations are taken from a video camera located in the corner of the interrogation room. The transcripts contain several notations that the dialogue is " inaudible."
[¶27] Defendant was repeatedly interrogated by two detectives over those two days. The detectives used excessive amounts of profanity during the interrogation. The detectives misinformed defendant that if he had not planned to specifically shoot Casillas, then it was not first degree murder and he could receive a lesser sentence and regain his life. The detectives also repeatedly told defendant that he had been identified in multiple lineups and they had six witnesses. However, defendant had only been identified in one lineup. The five other occurrence witnesses were unable to identify defendant. The detectives also frequently referred to the evidence in their possession, such as fingerprints and other evidence from the van. No evidence of this kind was presented at trial.
[¶28] At around 8 p.m. on May 25, 2007, defendant explicitly requested to speak
with an attorney. The detectives asked defendant if he wanted to end questioning to get an attorney, which defendant said he did. The detectives ended questioning at that time. However, at approximately 1:15 p.m. on May 26, 2007, the detectives reinitiated interrogation with defendant without an attorney present.
[¶29] During the May 26 interrogation, defendant made incriminating statements. He initially said he was in the van during the shooting, but did not participate. The detectives told defendant he was lying. Defendant then told them that he was driving the van and was unaware that codefendant Robert Macias had a gun. Again the detectives told defendant he was lying. At approximately 11 p.m., defendant confessed that he was the shooter. Following the interrogation, an ASA reviewed the case and declined to press charges. Defendant was released in the early morning hours of May 27, 2007.
[¶30] On June 2, 2007, Macias was arrested in connection with the shootings. During his interrogation, Macias gave statements incriminating defendant as the shooter. Based on this information, the police arrested defendant a second time on July 14, 2007.
[¶31] At approximately 6:15 p.m. on July 14, 2007, defendant was again placed in an interrogation room at Area 4. One of the detectives, who also participated in defendant's initial interrogation, gave defendant his Mirand ...