Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 13 MC1 186853. Honorable Thomas J. Byrne, Judge Presiding.
FOR PLAINTIFF-APPELLEE: Alan J. Spellberg, Douglas P. Harvath, Bianca R. Pucci, Assistant State's Attorneys, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Linda Olthoff, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, Illinois.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Liu concurred in the judgment and opinion.
[¶1] Following a joint bench trial with three codefendants, defendant Samuel Gonzalez was found guilty of reckless conduct, a Class A misdemeanor, and sentenced to 120 days in the Cook County department of corrections. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt because the police officer's testimony that he and codefendants threw bricks was contradicted and unbelievable. Defendant also contends that he was denied a fair trial because the trial court relied on testimony of endangerment that was not admitted to support its guilty finding. We reverse defendant's conviction.
[¶2] In the original complaint, defendant was charged with reckless conduct based on his act of holding a brick and glass bottle in his hand while yelling gang slogans to passing vehicles and pedestrians. Prior to trial, the State amended the complaint to allege that defendant performed reckless actions that endangered the safety of another by " throwing bricks while yelling gang slogans to passing vehicles."
[¶3] All four defendants were represented by the same defense counsel. Throughout the trial, the questions posed and the answers given were phrased in collective references to " the defendants," " they" and " them." The State and the defendant did not specifically elicit testimony directed at defendants individually or defendant Gonzalez in particular.
[¶4] At trial, Chicago police officer Matthew Hoyas testified that at about 10:15 p.m. on April 5, 2013, he and his partner, Officer Romero Martinez, drove an unmarked police vehicle to the vicinity of 3113 West Wabansia Avenue in response to several calls received by police. As he drove westbound on Wabansia Avenue, Officer Hoyas saw a group of 10 men, including " the defendants," standing in the middle of the street two blocks away at the intersection of Wabansia and Albany Avenues. From this distance, Officer Hoyas observed that all of the men in the group were holding bricks and throwing bricks and bottles into the street at passing vehicles while yelling gang slogans. When he was 10 to 15 feet away from the group, Officer Hoyas saw the men throw bricks at two passing cars that were being driven northbound on Albany Avenue, about 3 to 5 feet from the group. He did not see any bricks hit either car, but saw the bricks land " within feet" of the cars. Officer Hoyas also observed three pedestrians walking westbound on Wabansia Avenue, and when they were about 10 feet from the corner of Albany Avenue where the group of men were throwing bricks, they turned around and walked away heading eastbound.
[¶5] Officers Hoyas and Martinez drove to within five feet of the group, exited their vehicle, approached the men, who were all holding bricks, and told them to come to the vehicle. All of the men dropped their bricks to the ground, " the defendants" approached the police vehicle, and the other six men fled. Officer Hoyas observed numerous bricks on the ground, in the middle of the street, and on the sidewalk. " The defendants" were then taken into custody. At the police station, defendants told the officers that they were out there " so deep" because the Folks posted on Facebook that they were coming to retaliate. Officer Hoyas acknowledged that the police report of the incident did not include a specific statement that defendants were throwing bricks but, rather, that they were in the street with rocks, bricks and bottles.
[¶6] Officer Hoyas further acknowledged that he knew " the defendants" from having prior contact with them, and had previously told them to stay away from that area. Defense counsel then asked " [D]id you actually see the four throw a brick at a car?" and Officer Hoyas replied " No, I didn't." Thereafter, Officer Hoyas testified that he saw " the defendants" throwing bricks when he was approximately two blocks away from them and that he could see their faces from that distance at night.
[¶7] Chicago police officer Romero Martinez testified substantially the same as Officer Hoyas regarding their response to the call about a gang disturbance, and his observation of a group of 10 men standing in the middle of the street holding bricks. He further testified that the area was well lit, and that he saw the men flashing gang signs and yelling gang slogans at one vehicle going northbound on Albany Avenue. Officer Martinez also saw three or four pedestrians walking westbound on Wabansia Avenue toward the group of men and saw them turn around and walk eastbound when they were 10 to 15 feet away from the men.
[¶8] Officer Martinez further testified that as he and Officer Hoyas approached the group, all of the men dropped their bricks to the ground, and " the defendants" came to the police car while the other six men ran inside a building around the corner. Defendant told the officers they were out there because the Folks posted on Facebook that they were coming to the neighborhood to retaliate. Officer Martinez did not see anyone throw any bricks, nor did he see any bricks strike the passing car. He acknowledged that he did not see anyone holding bottles, but he wrote in his police report that they were holding bottles because there were several bottles on the ground and defendants were standing near them. He also saw numerous bricks in the street in addition to the bricks the men were holding.
[¶9] The trial court summarized the evidence, specifically noting that Officer Hoyas saw the men throwing bricks, but that Officer Martinez saw them holding the bricks. The court found that the men were " yelling in the middle of the street where pedestrians were and changed directions based on -- from the court's finding of the facts based on the conduct they observed." The court pointed out that the people inside the cars did not come forward to describe whether or not they felt endangered, but it found that it was reasonable to presume that they were trying to get away from the area where the defendants were standing in the street with ...