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Mercado v. Calloway

United States District Court, N.D. Illinois, Eastern Division

December 15, 2016

Angel Mercado, B54286, Petitioner,
v.
Victor Calloway, Warden, Danville Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Thomas M. Durkin, Judge

         Angel Mercado was convicted after a jury trial of aggravated discharge of a firearm and unlawful use of a weapon by a felon. See R. 6 at 2. He is serving concurrent prison terms of 20 and 12 years at the Danville Correctional Center in Danville, Illinois, where he is in the custody of Warden Christine Brannon.[1] See Id. Mercado seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See R. 1; R. 6. The Warden has answered the petition by seeking its dismissal. R. 21. For the following reasons, Mercado's petition is dismissed and the Court declines to issue a certificate of appealability.

         Background

         I. Facts

         Mercado was tried before a jury along with his codefendant Robert Cantoral-who was Mercado's girlfriend's brother-for firing a gun from a moving car at another moving car. Mercado was in the front passenger seat of a car driven and owned by Cantoral, when they pulled up at a stop light next to a car containing four other men. The four men testified that Cantoral flashed a gang sign at them, to which one of the four men responded with a middle finger. Two of the four men admitted to being former gang members. The four men testified that when the light turned green Cantoral sped ahead of them, and that Mercado leaned out the front passenger window and fired two gunshots at their car. Mercado himself admitted that he shot at the car containing the four men. Shortly thereafter, the four men found a police officer and reported the incident. The police located Cantoral and Mercado in their car, and recovered a gun in a hidden compartment within the car. All of these facts were in evidence before the jury.

         Prior to trial, Mercado's attorney notified the trial court that Mercado intended to argue self-defense because he thought he saw the four men searching through their car as if they were looking for a gun. Mercado's attorney also informed the court that Mercado intended to testify that he believed Cantoral had the same fear. Mercado's attorney further told the court that he surmised, based on Cantoral's intent to raise a sufficiency of the evidence defense, that Cantoral intended to testify that he did not share Mercado's fear of the four men, thus contradicting Mercado's anticipated testimony. For this reason, Mercado's attorney argued that Cantoral's defense was antagonistic to Mercado's self-defense theory.

         He therefore sought a severance of Mercado's trial from Cantoral's. The trial court denied the motion to sever, reasoning (1) that is was sheer speculation what Cantoral would testify to, and (2) even if Cantoral did testify that he did not share Mercado's fear, his testimony would simply be that of an eyewitness and would not raise an antagonistic defense that would warrant a separate trial. See R. 22-6 at 16 (K-7:14-23).

         Later during trial, it was Cantoral's attorney who brought a motion before the trial court touching on the same issue. Cantoral's attorney told the trial court that he believed, based on statements by Mercado's attorney, that Mercado was going to testify not only that Cantoral was afraid of the four men in the other car, but that the gun Mercado used belonged to Cantoral, and that Cantoral directed Mercado to get the gun and shoot at the four men. R. 22-6 at 6 (A-4:6-12). Cantoral's attorney argued that this was a change in Mercado's defense strategy that should not be permitted at that late stage of the trial. In response to Cantoral's attorney's argument, Mercado's attorney clarified how he expected Mercado to testify:

         We are not going to say that Mr. Cantoral was angry at the other car. . . . The situation we are going to describe is one where the occupants of Mr. Cantoral's vehicle are in fear for their lives and that there was an interaction between Mercado and Cantoral in response to that and Mr. Mercado did what Mr. Mercado did in fear of his life and the other occupant of the vehicle, which is Mr. Cantoral. R. 22-6 at 8-9 (A-6:22-A-7:10). The trial court's response to the motion by Cantoral's attorney was to tell Mercado's attorney that he should have described Mercado's potential testimony in greater detail prior to trial when he moved for a severance, because

that's at the very heart of the antagonism now, isn't it? Here we are in the middle of a jury trial and all of a sudden for the first time in the middle of a jury trial the antagonism has become apparent.

R. 22-6 at 10 (A-8:19-24). At this point, the Assistant State's Attorney interjected, pointing out that the “real issue” was not about “any words exchanged between [Mercado and Cantoral] but that there has been a representation that [Mercado] is going to get up and [testify that] he got the gun from [Cantoral].” R. 22-6 at 11 (A-9:5-10). The Assistant State's Attorney argued that Mercado had the opportunity to raise this particular alleged fact when he moved for severance before the trial, and because he failed to do so, he should “be estopped from making any representations as to where he received that particular firearm.” R. 22-6 at 12 (A-10:15-17). Cantoral's attorney agreed that a restriction on Mercado's testimony was an appropriate sanction for the late notice, and that a mistrial would be necessary if such a restriction on Mercado's testimony was impermissible. In support of this motion for sanctions or, in the alternative, a mistrial, Cantoral's attorney argued that

the antagonism comes from [Mercado] indicating that [Cantoral] had the gun in the car and was responsible for getting the gun into [Mercado's] hands, and that is an antagonism that is in fact enormously prejudicial and I think will eventually not allow this case to be tried fairly . . . .

R. 22-6 at 12-13 (A-10:22-A-11:4). The trial court declined to issue a preemptory ruling on Cantoral's motion, stating that he would decide the issue when “Mercado actually testifies.” R. 22-6 at 13-14 (A-11:24-A-12:1).

         The issue of Mercado's testimony was presented to the trial court again after the close of the state's case and immediately before Mercado took the witness stand.

         The Assistant State's Attorney again sought to exclude Mercado's anticipated testimony concerning the source of the gun.

[T]he origin of the gun [has] no impact or is not relevant to the charges at issue. The self-defense . . . is only applicable to [the] charge [of aggravated discharge of a firearm]. Makes no difference where he got the gun in his self-defense claim. Whether or not he says it appeared in his hand, the fact that he used it to shoot [at] someone makes no difference whatsoever as to that particular charge. . . . We would ask that [Mercado] be limited to simply stating that he grabbed the gun and not stating from where he grabbed [it].

R. 22-6 at 44-45 (A-42:16-A-43:2, A-43:14-17). In response, Mercado's attorney argued that Mercado should be permitted to testify

that . . . something happens between Mr. Cantoral and the vehicle [with the four men]. There is this discussion between Mr. Cantoral and Mr. Mercado. . . . The car [with the four men] follows them. There is continued discussion between Mr. Cantoral and Mr. Mercado. Mr. Mercado is told that there is a gun in the car, [and] where it is. He gets it. Then he is told that the vehicle [with the four men] is now coming up on Mr. Mercado's side [of the car]. He displays the gun. He fires it in the direction of the pavement. Then he puts the gun back where it was recovered by the police, a sealed compartment located in Mr. Cantoral's vehicle.

R. 22-6 at 47-48 (A-45:7-A-46:2). The trial court then reconfirmed with Mercado's attorney what Mercado's testimony would be, and in the course of that discussion eventually had the following exchange with the attorneys for Mercado and Cantoral:

The Court: And then there is another conversation, of course, about-
Mercado's Attorney: I will say it is a continuing conversation.
The Court: The contents of which is not coming into evidence, but then after that conversation [Mercado] goes and retrieves a gun from the car?
Mercado's Attorney: Yes.
Cantoral's Attorney: He says [Mercado] is going to say [Cantoral]
told him there was a gun in the car, where to get it from and that's where he got it from.
The Court: That's hearsay. How is that coming in?
Cantoral's Attorney: He was going to say he was directed to get the gun.
The Court: How could he say that? How can he put that conversation into evidence?
Cantoral's Attorney: You are right. The point I obviously am making is that when [Cantoral] is driving away, he certainly couldn't have put that gun in that right hand wherever the hell that gun was put back there. He can't be driving the car and go to the back of an SUV. It is impossible. So I am just saying- Mercado's Attorney: We are saying we put it back.
Cantoral's Attorney: Okay. Fine. I still renew my motion for a mistrial. It is surprise testimony.
The Court: Make the motion at the appropriate time.

R. 22-6 at 48-50 (A-46:21-A-48:7). As indicated in the above excerpt, the trial court believed that Mercado's proposed testimony about his conversation with Cantoral was inadmissible hearsay. Nevertheless, the trial court denied the Assistant State's Attorney's motion insofar as it sought to bar Mercado from testifying about where he got the gun (as opposed to conversations he had with Cantoral about the gun). Id. Mercado took the stand immediately after this exchange.

         Midway through Mercado's testimony the following exchange occurred:

Mercado: I noticed [Cantoral] and the other car [with the four men] exchanging words. Not necessarily gangbanging words, ...

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