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.
For Plaintiff-Appellee: Anita Alvarez, State's Attorney, Chicago, IL (Alan J. Spellberg, Christine Cook and Peter Maltese, Assistant State's Attorney, of Counsel).
For Defendant-Appellant: Richard Dvorak of The Law Offices of Richard Dvorak.
McBRIDE, JUSTICE 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 Robert Macias 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 75 years in the Illinois Department of Corrections.
[¶2] Defendant appeals, arguing that: (1) the trial court erred in denying his motion to suppress statements because defendant was given defective Miranda rights, and his statement was involuntary as a result of his will being overborn by police detectives; (2) his trial counsel was ineffective for failing to object to harmful inadmissible evidence and introducing such harmful evidence, failing to introduce favorable evidence to explain why defendant confessed, failing to raise missing portions of the videotaped interrogation in his motion to suppress, and failing to submit a jury instruction that the jurors could not consider defendant's decision not to testify at trial; (3) defendant was denied a fair trial when the trial court admitted prejudicial photographs from a MySpace page without proper foundation or authentication; and (4) the trial court committed reversible error by not permitting defendant to introduce evidence from the videotaped interrogation that explained why he confessed and by failing to ensure the jury was properly instructed on the law.
[¶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 arrested on June 2, 2007, and interrogated for approximately 46 hours at Area 3 at West Belmont Avenue and North Western Avenue. After viewing a video recording of codefendant Oscar Flores' statement that incriminated him, defendant gave a statement admitting that he was driving the van when Flores shot the victims. Prior to trial, defendant filed a motion to suppress his statements. The written motion is not contained in the record on appeal, but the record does contain the transcripts of the hearing and ruling on the motion. Defendant argued at the hearing that his statements should be suppressed because (1) his Miranda rights were violated; (2) his request for an attorney was not honored; and (3) his statement was not voluntary because his will was overborne by the detectives.
[¶4] At the suppression hearing, defendant presented the testimony of his mother, Hermilinda Montoya. Montoya testified that on the evening of June 2, 2007, she was informed by her daughter that defendant was missing. She went to the police station at West Ogden Avenue and South Kedzie Avenue, and asked if defendant was at the police station. An officer stated that he was not there. Montoya asked to file a missing person report, but was told by the officer that defendant's father had already filed a report. She asked to file another report, but was told she could not. On June 4, she went to the police station at West Harrison Street and South Kedzie Avenue, and was directed to the Belmont and Western station. At the station, she was told that defendant was in custody and under investigation, but was not permitted to see defendant. Defendant was 17 years old in June 2007.
[¶5] The DVD recordings from the electronic recording interview device (ERI) in the interview room were admitted into evidence. Defendant rested.
[¶6] Detective Gregory Swiderek testified for the State. He stated he was assigned to investigate Casillas's homicide. He arrested defendant on June 2, 2007, at approximately 9 p.m. Defendant was brought to Area 3 for questioning. Detective Swiderek testified that he gave defendant his Miranda rights when he placed defendant under arrest, and later at 9:38 p.m., he readvised defendant of his Miranda rights in the interview room. Defendant indicated that he understood his rights. Defendant gave an inculpatory statement at approximately 7:30 p.m. on June 4, 2007, after viewing a portion of codefendant Flores's statement.
[¶7] After reviewing the testimony and the DVD recordings, the trial court denied defendant's motion to suppress his statements.
[¶8] The following evidence was presented at defendant's October 2011 jury trial. Defendant was tried simultaneously with Flores, but with separate juries. Detective Gregory Swiderek initially testified before defendant's jury only. He stated that he was assigned to investigate the homicide of Victor Casillas on March 19, 2007. At approximately 9 p.m. on June 2, 2007, Detective Swiderek placed defendant under arrest, gave defendant his Miranda rights, and transported him to Area 3, where he was placed in an interview room. The ERI was turned on at 9:33 p.m. At 9:37 p.m., Detective Swiderek and his partner, Detective Roberts, entered the room and told defendant he was there for the homicide of Casillas. He also told defendant that he would be placed in multiple lineups. Detective Swiderek then advised defendant of his Miranda rights.
[¶9] While defendant was in custody, he appeared in multiple lineups in front of witnesses to the shootings. A polygraph examination was administered to defendant on June 3, 2007. Over the course of his time in custody, defendant was interviewed multiple times by the detectives regarding defendant's involvement in the case.
[¶10] At approximately 6:30 p.m. on June 4, 2007, Detective Swiderek with Detective Roberts had a conversation with defendant. Detective Swiderek asked defendant if he would like to view a portion of codefendant Flores' statement. After technical difficulties, defendant was shown Flores's statement around 7:20 p.m. The interview of defendant resumed after he viewed the statement. A portion of the videotaped statement was played for the jury.
[¶11] In the video, defendant said a person called Sonic picked him up in a van and they later picked up Flores. Sonic parked the van at West 26th Street and South Drake Avenue, and they left the vehicle. Later, defendant and Flores took the van. Defendant was able to drive without keys because the steering column was " peeled," which allowed it to be operated without keys. They picked up another man, but eventually dropped him off. Flores asked defendant to drive him home, which defendant did. When Flores returned to the van, he showed defendant that he had a gun inside a white sock. Defendant said Flores encouraged him to drive into the territory of their gang rivals, the Two-Sixes. Defendant did so. In the area near South Karlov Avenue and West 30th Street, he saw someone he described as a " little kid" walking on the sidewalk. Defendant stated that he stepped on the brakes and slowed the van down. Defendant " threw up the bunny," and the boy responded and " threw down the crown," which is a sign of disrespect to the Latin Kings, which was defendant and Flores's gang. Flores then said, " What's up b***?" and fired three shots. Defendant stepped on the gas and then heard a fourth gunshot.
[¶12] Defendant initially denied knowledge of a second shooting but later admitted that, after the first shooting, as he drove down 30th Street, they encountered another individual. Defendant said that he ducked down in the driver's seat and could not tell if the gunshots were coming from inside the van or from outside at the van.
[¶13] Detective Swiderek also testified about the gangs in the area of the shooting, including the Latin Kings and the Two-Sixes. He explained some of the terms used by defendant and demonstrated the different gang signs for the jury. Detective Swiderek stated that when he mentioned the second shooting, he was not trying to feed information to defendant, but to clarify that more than one person had been shot. He did not think defendant was telling the complete truth at that time.
[¶14] Detective Swiderek also identified two exhibits which were photographs from MySpace.com. The first photograph was given to him by another detective and showed Casillas with writing, " Little Bones Rotsk, ha, ha, ha, one less Avers." Defendant said he knew the person in the photograph as " Baby Risky," but not as " Little Bones." The second photograph was of defendant with his face blacked out. The photograph says, " Almighty Drake Latin King Latin Criminal," and defendant was " throwing off gang signs." Detective Swiderek testified that he showed defendant this photograph during the interview and defendant admitted it was him. Defendant admitted that he used to be a Latin King from 27th and Drake, and he was called " Criminal."
[¶15] On cross-examination, Detective Swiderek testified that defendant initially denied his involvement in the March 19, 2007, shootings. He stated that defendant was fed and allowed to use the restroom anytime he needed by knocking on the door. Detective Swiderek admitted that at the time of his statement at 7:30 p.m. on June 4, 2007, defendant had been in custody for 46 hours. Detective Swiderek denied telling defendant that if he gave a statement, then he would be released, as Flores had been. On redirect, Detective Swiderek stated that defendant did not make any incriminating statements until he watched a portion of Flores's statement.
[¶16] 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.
[¶17] 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.
[¶18] Gonzalez was unable to make an in-court identification. Gonzalez testified that he viewed a lineup in May 2007, but he could not be sure who he identified. He said he identified Casillas's killer, but he did not know if he identified codefendant Flores. Gonzalez admitted that he gave a statement to an assistant State's Attorney (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.
[¶19] The State later called the ASA who took the statement and she testified that Gonzalez identified Flores as the shooter. She stated that she wrote down what Gonzalez told her and they reviewed the statement before he signed it.
[¶20] Gonzalez also could not recall his grand jury testimony. The State called the ASA who presented Gonzalez at the grand jury. She testified that Gonzalez identified Flores as the shooter.
[¶21] On cross-examination, Gonzalez admitted that the occupants of the van were two male Hispanics. When asked if he could identify the driver, Gonzalez stated that all he " saw was a shadow." He said the police arrived in three to four minutes. He testified that he was taken to the police station in handcuffs.
[¶22] 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 Flores. He said he recognized Flores as " Little Rowdy." He said he then looked through a Farragut High School yearbook and found " Little Rowdy" under Flores's name. Antonio testified that he approached a security guard he knew was an off-duty police officer at his brother's funeral. Antonio gave the officer Flores's name. A couple days later, two detectives came to his house and Antonio showed the detectives the MySpace page.
[¶23] Antonio was shown three photographs from the MySpace page. The first was a picture of Flores 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.
[¶24] Antonio denied having a conversation with Gonzalez about the MySpace page and about who Gonzalez needed to identify as the shooter. He also denied telling Gonzalez to specifically identify Flores as the shooter. He stated that he called Gonzalez because the detectives wanted to speak with Gonzalez.
[¶25] Lorena Aguilar and Elizabeth Hernandez each testified that at around 8 to 8:30 p.m. on March 19, 2007, they were walking east on 30th Street, between Tripp Avenue and Kildare Avenue, when they heard gunshots. Both testified that they turned around to look back 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, both testified that they heard more gunshots. Each testified that 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.
[¶26] 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.
[¶27] Yolanda Gutierrez testified that she was the owner of 1989 Chevy Astro van. She reported the van stolen on March 16, 2007. She was notified a few weeks later the van had been found. She identified the van in photographs presented at trial.
[¶28] Detective Swiderek was recalled later in the State's case before both juries. He denied handcuffing Gonzalez on the date of the shooting. He stated that Gonzalez came to the police station willingly. Detective Swiderek testified that a gang intelligence officer told him that an individual named Abraham Barajas, a Latin King member, was bragging that he was involved in the homicide. Detective Swiderek stated he that showed Aguilar, Hernandez, and Martinez a photo array that contained Flores, Barajas, and five fillers. All three said they did not see Barajas the night of the shooting, but they tentatively identified Flores. Each said she would need to see him in a lineup. Serrano was not able to identify anyone. Later in May 2007, Flores was placed in multiple lineups, but Aguilar, Hernandez, Martinez, and Medina were unable to make an identification. Gonzalez identified Flores in a lineup as the individual who shot and killed Casillas.
[¶29] After defendant's arrest on June 2, 2007, Detective Swiderek testified that defendant was placed in multiple lineups. Aguilar, Martinez, and Gonzalez were unable to make an identification. Hernandez refused to come to the police station to view a lineup.
[¶30] On cross-examination, Detective Swiderek explained that Antonio was able to view the MySpace photographs through his cousin. She sent a friend request to " Little Rowdy," and after it was accepted, they were able to obtain the pictures. He stated that he viewed 75 MySpace photographs. When asked if defendant was in any of the photographs, Detective Swiderek responded, " There were many." Detective Swiderek admitted that the first time he learned of defendant was in Flores's statement. He agreed that defendant was not identified in any lineup, and no information he received involved defendant. On redirect, Detective Swiderek identified four photographs from the MySpace account of defendant.
[¶31] The parties stipulated that six cartridge cases were recovered at the scenes of the shootings, but no fingerprints were recovered from the casings. The parties also stipulated that Casillas's cause of death was a single gunshot wound that caused massive bleeding from his chest cavity and the manner of death was homicide.
[¶32] The State rested. Defendant moved for a directed verdict, which the trial court denied.
[¶33] Gabriel Navarro testified for the defense. He stated that in March 2007, defendant and defendant's father were living with him. On March 19, 2007, Navarro testified that he was with defendant most of day. He was home with defendant from 6:30 p.m. to 10:30 p.m., when Navarro went to bed. They had played cards that evening until defendant went to play video games.
[¶34] On cross-examination, Navarro stated that he was asked to be an alibi witness in March 2011, but he said that he told defendant a couple years ago that he wanted to testify. Navarro admitted that he did not speak with police.
[¶35] 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 39 years for the first degree murder conviction with an additional 15-year firearm enhancement, 6 years for the attempted murder conviction, and 15 years for the aggravated ...