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People v. Anderson

Court of Appeals of Illinois, First District

January 31, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROBERT ANDERSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County 03 CR 7356 Honorable Kenneth Wadas, Judge Presiding.

          JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.

          OPINION

          PIERCE JUSTICE.

         ¶ 1 Defendant Robert Anderson was convicted of four counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)) related to the shooting deaths of Moises Reynoso and Robert Lilligren. Defendant was subsequently sentenced to life in prison. Defendant now appeals and raises eight issues: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in admitting hearsay testimony; (3) the trial court erred by precluding defense counsel from questioning Officer Jeong Park as to whether he would describe defendant as "black"; (4) the trial court erred when it excluded evidence of defendant's prior acquittal for an unrelated charge; (5) the trial court erred in denying defendant's motion in limine for expert testimony on eyewitness identification; (6) the trial court abused its discretion in denying defendant's motion for new trial in light of allegedly newly discovered evidence; (7) the prosecutor's remarks in closing argument were prejudicial and denied defendant a fair trial; and (8) the trial court erred in denying his request for a new trial based on his allegations of ineffective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

         ¶ 2 BACKGROUND

         ¶ 3 On March 6, 2003, Moises Reynoso and Robert Lilligren were shot to death as they sat in a vehicle in the parking lot behind Leader Liquors, just north of the intersection of Irving Park Road and Sacramento Avenue in Chicago.

         ¶ 4 Shortly before midnight on March 5, 2003, Chicago police officers Paul Sedlacek and Jeong Park received a call requesting a well-being check on the attendant of the Clark Gas Station at the intersection of Sacramento Avenue and Irving Park Road. The officers arrived at the gas station in less than a minute. As the officers got out of their car, they heard gunshots coming from a parking lot on the west side of Sacramento Avenue across from the gas station.

         ¶ 5 Officer Sedlacek heard five or six shots initially. The shots came from the center of the parking lot behind Leader Liquors where a silver car was parked. A man, who was later identified as defendant, was standing near the rear passenger's side, next to the trunk, firing approximately five shots into the vehicle. Defendant then moved around the back of the vehicle, stood next to the tire on the driver's side, and fired one shot at the driver who appeared to be trying to exit the vehicle. Defendant was 60 to 65 feet away from the officer in a well-lit area. There was a six-foot tall chain link fence between Officer Sedlacek and defendant, but he could easily see through it. Officer Sedlacek saw defendant's face but not clearly enough to make an identification. Officer Sedlacek testified defendant was wearing a dark jacket and dark pants. Reynoso was the driver of that car, and Lilligren was the passenger.

         ¶ 6 After firing the last shot at Reynoso, defendant ran east along the alley toward the gas station where the officers were. A chain link fence enclosed the area, and the officers had to find a hole in the fence so that they could access the alley. The officers also ran east, parallel to defendant, until they found the opening in the fence, at the far northeast corner of the gas station parking lot. The officers had to run around the mini-mart, which was about 20 feet wide, and could not see the defendant while he was behind it.

         ¶ 7 When defendant ran past the officers, he turned his head and looked at them. Officer Sedlacek was able to see defendant's face from approximately 10 to 15 feet away for about a second. Defendant's hood had fallen from his head when he turned, giving Officers Sedlacek and Park a full-frontal view of his face. There were street lights in the alley. Officer Park also saw the defendant was wearing gloves and holding a gun in his right hand. Officer Park radioed that defendant was running eastbound in the alley north of Irving Park Road. Defendant had a gun in his right hand. Officer Sedlacek testified that he "fixated on that gun [and] did not observe his left hand." Officer Sedlacek testified that at the time of the shooting, he recognized defendant's face but could not remember his name.

         ¶ 8 The officers chased defendant east through the alley to Richmond Street, where defendant turned north. By the time he turned, defendant was 25 to 30 feet in front of Officer Sedlacek and about 15 feet ahead of Officer Park, who saw defendant heading east into a gangway about mid-block on Richmond Street. When the officers reached Richmond Street, they heard "panicked shrieking" that was "[e]xtremely loud, as loud as someone could shriek." The officers turned around and ran back to where the shrieking came from. When they arrived back at the scene of the shooting they found Roberta Stiles screaming "my cousin, my cousin." Officer Park broadcasted defendant's description over the police radio as a "male black, [wearing] all black-or all dark clothing." Officer Park testified that in the "heat of the moment, I saw a person wearing all black, running eastbound, carrying a gun. That's what I went [with] on the air."

         ¶ 9 The officers observed Reynoso, the driver of the car, lying on the ground next to the car, bleeding from a gunshot wound to the head. He was pronounced dead at the scene. Lilligren, who was seated in the passenger's seat of the vehicle, was also bleeding. Officer Sedlacek testified that he recognized Officer Reynoso from previous interactions.

         ¶ 10 Chicago police officer Joseph Castillo arrested defendant about four minutes after Officers Park and Sedlacek stopped chasing him. He was apprehended by Officer Castillo after a foot chase through a gangway and a parking lot. During the chase, Officer Castillo saw defendant throw something down, which he recovered and identified as a pair of black gloves. Along with the gloves, Officer Castillo recovered a checkbook that did not bear defendant's name.

         ¶ 11 Approximately 15 minutes after the shooting, defendant was placed in a squad car and brought back to the scene. Officer Sedlacek was instructed to look inside the car to see if he could identify defendant as the shooter. Officer Sedlacek "looked inside, the offender looked at me, I said, 'Yes, that's the person I saw shoot.' " After Officer Sedlacek identified defendant as the shooter, defendant vomited in the car. Officer Park viewed defendant in the back of the police car separately and also identified defendant as the shooter. Defendant again vomited after he was identified as the shooter by Officer Park.

         ¶ 12 Officer Sedlacek testified that he recognized the defendant but could not initially recall his name. He later discovered that he had arrested defendant, along with Reynoso and Terry Hill, in an unrelated case in July 2001. Officer Sedlacek testified and identified defendant at the trial for defendant's unrelated case, which took place a little less than a year before the shooting in this case. He knew defendant as "Nookie." Officer Sedlacek also identified photographs of Hill, whom he knew as "Terry, " and a photograph of Jesus Quinones, whom he knew as "Blood." He stated he saw defendant, Reynoso, and Hill in the early morning hours of July 1, 2001, when he arrested all of them for aggravated battery in an unrelated incident. Officer Sedlacek testified that during the prior investigation he was face-to-face with defendant several times and was within several feet of defendant for about two hours in a lit police station.

         ¶ 13 Between the time Officer Sedlacek observed the shooting and the show-up identification of defendant, he did not report on the radio that the shooter was defendant or that the shooter was nicknamed "Nookie." He did not tell the superior officers at the scene that he knew defendant and had previously arrested him. Officer Park also testified that Officer Sedlacek never indicated that he knew defendant from a previous arrest.

         ¶ 14 In Officer Sedlacek's incident report, he listed himself and Officer Park as people who discovered and reported the crime but did not check the box indicating they witnessed the crime. Officer Sedlacek wrote that he "saw an individual standing next to a silver car, firing a handgun into the vehicle, " and that person was "a male black in his 20's wearing a dark jacket." The report did not include the fact that Officer Sedlacek saw the front of the man's face as he was running past the officers in the alley. The report also did not include that the man was wearing gloves and did not detail that the man was "wearing a parka with the hood up and fur trim around the hood." Officer Sedlacek did not include the information that the man stood near the rear passenger's side tire or that he looked both ways before firing the last shot. The additional information that defendant had vomited after he was identified as the shooter was also not included in Officer Sedlacek's report.

         ¶ 15 Officer Castillo testified he was on duty on March 6, 2003. Officer Castillo was working alone, in uniform, and driving an unmarked squad car. Just after midnight, Officer Castillo heard a radio call announcing shots fired near the intersection of Sacramento Avenue and Irving Park Road. The description given was "male black in all dark clothing." He then heard Officer Park make another radio call stating "731, we lost him in the alley, one block east of the gas station. If someone can secure our car, well, it's the gas station lot, when we heard the victim screaming." Officer Castillo was only a few blocks away. He drove down California Avenue to Belle Plaine Avenue, one block north of Irving Park Road. He stopped, walked west on Belle Plaine Avenue until he reached the north-south alleyway between California Avenue and Mozart Street, and walked south through the alley.

         ¶ 16 Defendant then ran out from an east-west gangway at 4035 North Mozart Street into the alley where Officer Castillo was walking. Officer Castillo was approximately 10 feet away from defendant when he came out of the gangway. Defendant was wearing dark clothing, a "[b]lack parka type jacket." Defendant fit the description Officer Castillo heard over the radio. Officer Castillo yelled at defendant to stop and announced "police, " but defendant continued running. When Officer Castillo first saw defendant, he did not notice if defendant had anything in his hands.

         ¶ 17 Officer Castillo chased defendant, who ran onto California Avenue. Defendant ran south through a parking lot located on the northwest corner of California Avenue and Irving Park Road and was stopped by another police car. As the police car was approaching, Officer Castillo saw defendant throw a pair of black gloves, which he later recovered. Officer Castillo then placed defendant into custody. Officer Castillo also recovered a checkbook that was found next to the gloves. The checkbook was not in defendant's name, and Officer Castillo did not see it drop from defendant's hands. Officer Castillo put the gloves and checkbook in his pocket and later turned them over to the evidence technicians. Officer Castillo showed Chicago police sergeant Rick Nigro the gangway that he saw defendant run out of.

         ¶ 18 Sergeant Nigro then drove to the scene of the shooting and attempted to retrace defendant's steps from the shooting to the gangway. Sergeant Nigro walked east from the scene of the shooting through the alley where the radio broadcast had reported defendant was running. He conducted a systematic search of the gangways and alleyways and looked for footprints in the snow. He searched for approximately one hour and eventually "saw some footprints on the side of [a] garage, " which led him to search for a gun in that area. The garage was located at 4036 North Mozart Street. Sergeant Nigro climbed to the second level of a neighboring porch so he could see the roof of the garage. From the higher vantage point, he could see "a hole in the snow" in the middle of the roof. He called for a ladder, climbed on top of the roof, and found a semiautomatic handgun.

         ¶ 19 Chicago police forensic investigator Jim Shadir and his partner, Arthur Oswald, photographed the gun as it was found and then inventoried the weapon. The gun was a black .40-caliber Beretta model 8040 Cougar F, which had a defaced serial number. The gun was in slide lock, which meant that all the bullets that were in the weapon had been expended. Investigator Shadir also recovered an empty black .40-caliber Smith and Wesson magazine from the gun. There were no latent fingerprints on the gun, the magazine, or the cartridge cases.

         ¶ 20 Investigators Shadir and Oswald also processed the scene of the shooting at approximately 12:53 a.m. Investigator Shadir photographed the crime scene and recovered one .40-caliber Smith and Wesson cartridge case on the ground in the snow near the driver's side door of the vehicle, and five .40-caliber Smith and Wesson cartridge cases on the ground in the snow near the passenger's side of the vehicle. Shadir inventoried the cartridge cases to be submitted for forensic analysis. While at the scene, he also received a pair of black gloves and a checkbook from Officer Castillo, which he inventoried for analysis. Investigator Shadir then went to the hospital where Lilligren was taken and recovered and inventoried Lilligren's jacket.

         ¶ 21 Dr. John Scott Denton, former Cook County medical examiner, performed an autopsy on Lilligren and stated that he been shot three times. None of the gunshot wounds were close range. Dr. Denton concluded that Lilligren was struck by at least two, possibly three, different gunshots and concluded that the gunshot wound to the back of Lilligren's head caused his death. The manner of death was homicide.

         ¶ 22 Dr. Denton reviewed the autopsy of Reynoso. Reynoso suffered 11 gunshot wounds. Three bullets were recovered from his clothing, and two more bullets were recovered from his body. Each of the bullets was inventoried. None of the gunshot wounds were at close range. The first gunshot wound was located in Reynoso's chest, on the right side. A second gunshot wound was located at the left lateral chest, and a third gunshot wound was just below the second at the left lateral chest. A fourth gunshot wound was located at the right side of Reynoso's back, just below the shoulder blade. A fifth gunshot wound was located in his back and entered through the eleventh rib on the right side. A sixth gunshot wound was the result of a bullet that went through the right chest and exited through the abdomen. A seventh gunshot wound was located in the right forearm. An eighth gunshot wound was located on the left hand, which had numerous injuries on the palm and fingers, which were classified as defensive wounds. A ninth gunshot wound, a graze, was located at the left upper arm. A tenth gunshot wound was located at the back left of Reynoso's head. This bullet traveled through the scalp, bone, and brain and lodged in the bone behind the left ear. Dr. Denton determined that Reynoso died from multiple gunshot wounds, and the manner of death was homicide. The location of the gun relative to the victims' bodies could not be determined, only the course the bullet took once it had entered the bodies. It was Dr. Denton's opinion that some of the bullets fired at Reynoso may have caused more than one wound.

         ¶ 23 Chicago police forensic investigator Steven Duffy went to the medical examiner's office on March 6, 2003, and received an envelope containing the bullets recovered from Reynoso's body. Investigator Duffy then submitted those bullets for forensic testing.

         ¶ 24 Forensic scientist Kurt Zielinski specializes in firearms identification for the Illinois State Police lab and supervised the testing performed on the recovered firearm, magazine, cartridge casings, and bullets. The firearm and magazine were capable of holding 11 bullets, 10 in the magazine and 1 in the chamber of the firearm. Forensic testing revealed that all six of the cartridge cases found next to the vehicle and all five bullets recovered from the victims' bodies and clothing were fired from the same gun found by Sergeant Nigro on the garage roof.

         ¶ 25 Forensic scientist Mary Wong specializes in trace chemistry for the Illinois State Police lab. Wong tested the black knit gloves for gunshot residue. One glove tested positive for the presence of gunshot residue. The other glove "had two unique particles and some consistent particles" but not enough to make a positive finding. Defendant's coat was tested for gunshot residue and samples taken from the cuffs of both sleeves revealed "they both contained particles of background samples which [led] to a conclusion that the sample areas may not have been in the vicinity of a discharged firearm" but the samples taken from the jacket did not test positive for the unique particles of gunshot residue. Wong testified that the absence of gunshot residue may have been the result of particles having been removed by activity. Wong stated that wind, moisture, and friction from brushing up against something could all remove gunshot residue or prevent it from being deposited. Wong added that a difference in fabric may also account for gunshot residue being deposited on one item but not another. The absence of gunshot residue was only on the specific areas tested, and it could not be concluded that there was a complete absence of gunshot residue on defendant's jacket.

         ¶ 26 Lorena Reynoso, Reynoso's sister, testified that approximately 10 days before the shooting, she was home with Reynoso in the evening and there was a knock at the door. She answered the door and saw defendant with two people she knew as "Blood" and "Terry." Lorena knew defendant by the nickname "Nookie." Lorena had known defendant for three years and had lived with him and his family for approximately three months in 2000. Defendant asked Lorena where Reynoso was. Lorena then had a conversation with Reynoso, after which she returned to the door and told defendant and the other two men that Reynoso was not home, so they left. Defendant had previously come to the house looking for Reynoso on five to seven separate occasions, beginning in November or December 2002. A few of those times defendant came with "Blood" and "Terry." Each time defendant came looking for Reynoso, it was approximately 7 p.m. Prior to late 2002, Reynoso and defendant had been friends and spent time together every day. They stopped spending time together around November or December 2002.

         ¶ 27 Reynoso and Lorena had another brother, Renee, who was also friends with defendant. Renee also stopped spending time with defendant in November or December 2002. When defendant came by asking for Reynoso, he did not ask for Renee.

         ¶ 28 Lorena testified that she did not tell anyone about these visits until January 2005, when she was interviewed by Assistant State's Attorney Brogan and a State's Attorney investigator about an unrelated case. At the time Lorena was on probation for concealing a fugitive, an ex-boyfriend. Additionally, two of her ex-boyfriends had been charged with murder, one of which was the fugitive Lorena was charged with concealing.

         ¶ 29 After the State rested, the court denied defendant's motion for a directed verdict.

         ¶ 30 Roberta Stiles testified on defendant's behalf. Stiles was Lilligren's aunt. She testified that before midnight on March 5, 2003, she saw Lilligren on Irving Park Road near the intersection of Francisco Avenue. She and Lilligren went to a friend's house to eat and then went to the gas station on Irving Park Road. The attendant was not there, so she went to a payphone to call the police. Lilligren then went to her friend Rex's apartment, located above the rear parking lot of Leader Liquors. Before they walked up the stairs, Reynoso drove up, parked the car, and joined them. Stiles, Lilligren, and Reynoso all went to Rex's apartment. After a few minutes, she went to the bathroom, and Lilligren and Reynoso left. She heard gunshots coming from outside. When she went outside she saw Reynoso lying face down in the snow outside the open driver's side door of his car. She ran to Reynoso, turned him over, and saw that he had a blue cell phone in his hands. She took the phone. Lilligren was in the passenger side of the car; after she saw him, she started screaming and became hysterical. She tried to make a call on Reynoso's cell phone but could not get the call to go through.

         ¶ 31 Stiles ran through the alley towards her family's home at 4012 North Richmond Street. She screamed when she arrived at the house, and her mother and brother came out. She did not remember if there were any police cars around at that time. Officers eventually approached her when she was in the alley. She did not remember if those were the first officers she spoke to that night. She went back to the scene with the officers. She did not remember how long she stayed at the scene or which officer she gave Reynoso's cell phone to. She told officers that she, Reynoso, and Lilligren were in Rex's apartment above the back parking lot. She also spoke with a detective sometime later but did not remember when. Stiles spoke with defense counsel and his investigator, Josh Byrne, about a report that Byrne had created. She did not remember if she was given a copy of that report. The report was a written account of an interview of Stiles which she signed. In that report, she stated she saw Reynoso face down in the snow but did not see anyone running in the alley or any police cars in the area, including in the gas station parking lot. This interview took place in January 2008.

         ¶ 32 Stiles testified that she did not witness the shooting and did not remember many things that happened that night. Sergeant David Betz was taking notes as she talked to him, and she told him that she had been in a bar earlier that night. Stiles testified that she did not remember if she told Sergeant Betz that she was with Lilligren in the apartment above the parking lot before the shooting. She stated, "I don't remember everything. I mean this was almost nine years ago." She added she was not looking at the gas station parking lot when she ran by it. She testified she remembered everything leading up to the shooting, but after seeing Lilligren shot in the head, "[y]ou're not going to remember who is around, who you're talking to."

         ¶ 33 In rebuttal, the State called Sergeant David Betz, who testified he spoke with Stiles at the scene of the shooting at approximately 12:40 a.m., and the conversation took place in a squad car because of the weather. He stated Stiles had a strong odor of alcohol and cigarettes. She told him she had been drinking at a bar down the street earlier that night. Stiles told him that when she saw Lilligren she started screaming for the police, and they arrived immediately. She never told Betz she had been in an apartment above Leader Liquors that night, and she did not give him the names of anyone who lived in that building.

         ¶ 34 Chicago police detective Dino Amato also testified in rebuttal. He interviewed Stiles at 4:00 a.m. on March 21, 2003. The interview took place at her home with two other detectives present. Stiles told him that she met up with Lilligren on Irving Park Road, after she had just left a bar, and they went to the gas station together. She also told Detective Amato that the police arrived immediately after she found Lilligren shot in the car. She added that she called the police when she could not find the gas station attendant; she then went to Riza Dauti's house. She stated she was there with Lilligren and Reynoso. She went to the bathroom, heard shots fired, and then went outside and found that Lilligren and Reynoso had been shot. She did not tell the detectives that she ran down the alley after finding the shooting victims or that she spoke with her family at her house. Dectective Amato testified that the detectives attempted to find someone in the apartments above the Leader Liquors parking lot on the night of the shooting but could not gain access because the entrance door was locked. The State rested.

         ¶ 35 The jury found defendant guilty on both counts of first degree murder and sentenced him to life imprisonment. He now appeals.

         ¶ 36 ANALYSIS

         ¶ 37 Defendant argues he was not proven guilty of the murders of Reynoso and Lilligren beyond a reasonable doubt because Officer Sedlacek's and Officer Park's identifications were insufficient to support his convictions beyond a reasonable doubt. Defendant also questions Officer Sedlacek's credibility because he was unable to identify defendant by name at the scene and in his incident reports.

         ¶ 38 On appeal, when the defendant challenges the sufficiency of the evidence, the reviewing court must determine, after viewing the evidence in the light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reviewing court affords great deference to the trier of facts and does not retry the defendant on appeal. People v. Smith, 318 Ill.App.3d 64, 73 (2000). "[A] reviewing court must allow all reasonable inferences from the record in favor of the [State]." People v. Cunningham, 212 Ill.2d 274, 280 (2004). A criminal conviction will not be reversed "unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt." People v. Graham, 392 Ill.App.3d 1001, 1009 (2009).

         ¶ 39 It is within the function of the trier of fact to assess the credibility of the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the evidence. Id. It is not the duty of the trier of fact to accept any possible explanation that favors the defendant's innocence and "elevate it to the status of reasonable doubt." People v. Siguenza-Brito, 235 Ill.2d 213, 229 (2009). A reviewing court will not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill.2d 187, 242 (2006).

         ¶ 40 Here, defendant alleges that the identification testimony of both Officers Sedlacek and Park was insufficient to support his conviction. Illinois applies the following factors to assess identification testimony: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); People v. Slim, 127 Ill.2d 302, 307-08 (1989). "A single witness' identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification." Slim, 127 Ill.2d at 307.

         ¶ 41 With respect to the first and second factors, the witness's opportunity to observe the offender during the incident and the degree of attention, defendant argues that Officers Sedlacek and Park would not have enough time, as they were chasing him through the alley, to see his face and be able to correctly identify him. Defendant adds both officers testified that they were looking at the gun in his hand as they were chasing him. However, both officers testified that as defendant was running, his hood fell back, allowing them to see an unobstructed view of his face from a distance of 10 to 12 feet away in a well-lit alley. They positively identified him only 15 to 20 minutes later. We find Officers Sedlacek and Park had ample opportunities to view defendant, and they testified to a degree of detail that would allow the jury to make a determination as to the appropriate weight to be given their identification testimony.

         ¶ 42 Third, we consider the accuracy of the witness's description of defendant. The officers witnessed defendant, who was armed, kill two people and gave chase. While Officer Park's description of defendant was somewhat general, the description of the fleeing offender given over the radio was accurate to the extent that it matched the defendant running through the neighborhood gangways within four minutes of the shooting in close proximity to the scene. Fourth, we consider the level of certainty the witness demonstrates in identifying defendant as the offender. Both officers identified defendant without hesitation shortly after seeing his face in the alley. Finally, we consider the amount of time between the commission of the crime and the identification. As stated, the officers identified defendant about 15 to 20 minutes after the shooting. After considering all five Bigger ...


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