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People v. Ochoa

Court of Appeals of Illinois, First District, Third Division

February 15, 2017

DANIEL OCHOA, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois. No. 03 CR 01532(04) The Honorable Thomas V. Gainer, Jr., Judge Presiding.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the Court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.



         ¶ 1 Following a jury trial, defendant Daniel Ochoa was convicted of first degree murder and aggravated discharge of a firearm in the 2002 shooting death of 15 year-old Marilu Socha. The jury also found that defendant personally discharged a firearm that proximately caused the death of the victim.[1] The trial court sentenced defendant to 45 years' incarceration for first-degree murder, 35 years' incarceration for the firearm sentence enhancement, and 10 years' incarceration for aggravated discharge of a weapon, to be served consecutively. On appeal, defendant contends the trial court erred where (1) he was denied his right to confrontation where the State elicited improper hearsay testimony from police officers, (2) it improperly allowed the State to argue that the shooting was a gang initiation, and (3) the firearm sentence enhancement is unconstitutionally vague on its face and as applied to him. For the following reasons, we reverse and remand for a new trial.

         ¶ 2 I. BACKGROUND

         ¶ 3 In brief, defendant was arrested two days after Socha was killed in a gang-related shooting. At that time, three other men[2] were being held for involvement in the shooting, two of whom were arrested after allegedly being involved in a subsequent, unrelated incident using the same distinctive vehicle that was used in Socha's murder. Defendant, who speaks only Spanish, signed a statement written in English with translation by the lead detective on the case, in which he confessed to the crime.

         ¶ 4 Defendant was tried in 2005 and found guilty of the first degree murder of Socha, as well as aggravated discharge of a firearm for shooting at Joe Maldonado but hitting and killing Socha. Defendant appealed, arguing in part that the trial court erred when it allowed hearsay evidence of co-defendants' statements implicating defendant. People v. Ochoa, No. 1-05-1848 (2007) (unpublished order under Supreme Court Rule 23). This court reversed defendant's conviction and remanded for a new trial. People v. Ochoa, No. 1-05-1848 (2007) (unpublished order under Supreme Court Rule 23). We held, in part, that the "State repeatedly elicited testimony that contained a strong inference that the co-defendants implicated defendant in their statements. This exchange went beyond mere questioning concerning the investigatory process, and included serial questions to build the inference that defendant was named by his criminal cohorts" and that the State improperly "reinforced this evidence by reminding the jury multiple times during closing arguments that, after police interviewed the co-defendants, they knew they were looking for a person with the precise characteristics of defendant." People v. Ochoa, No. 1-05-1848 (2007) (unpublished order under Supreme Court Rule 23).

         ¶ 5 Defendant was tried again in 2013[3] and found guilty of first degree murder and aggravated discharge of a firearm. It is from this conviction that defendant now appeals.

         ¶ 6 Prior to trial, defense counsel filed a motion in limine asking the court, in part, to exclude "inadmissible hearsay evidence inferring the co-defendants' identification of defendant." The court held a hearing during which the parties acknowledged that this type of hearsay was the reason the case was reversed in 2007 and was now on retrial. The court granted the motion in limine to prohibit evidence of the co-defendants' statements implicating defendant, saying it was sure nobody wanted to try the case a third time and that "we can walk around very carefully at the time the two witnesses, [Detective] Lopez and [Detective Garcia] are on the stand."

         ¶ 7 At trial, Joe Maldonado testified that on December 17, 2002, he was 18 years old and was a member of the Two-Six street gang in Chicago.[4] Around 7:30 that evening, he was at his family's grocery store on Kostner Avenue and 26th Street. He testified that this area was controlled by the Two-Six street gang. His girlfriend, victim Socha, came into the store. They left together, walking a few blocks to Socha's friend Lilly's house in the 3000 block of South Kolin Avenue. Maldonado and Socha stood outside the house, talking for a few minutes. Maldonado's back was to the street. He heard a vehicle's brakes squealing nearby. As he turned toward the sound, he saw "flashes" coming from the back, driver's-side window of a green car and then heard six gunshots coming from the car. The driver's window of the car had a plastic bag covering it. Maldonado did not get a good look at the vehicle's occupants, but testified there were three or four individuals who appeared to be Latino men with short hair. As the green car slowly pulled away from the scene, Maldonado heard the occupants yell "King love." Maldonado explained that "King love" signified that the occupants were members of a rival street gang, the Latin Kings. Maldonado identified a photograph at trial of the distinctive green vehicle with the plastic covering the driver's side window as the vehicle used in the shooting.

         ¶ 8 Emergency services arrived and transferred Socha to the hospital. Maldonado stayed at the scene to talk with the police. Eventually, the police took Maldonado to the police station, where he provided a statement to the police and was held until the next day.

         ¶ 9 Andrew Linares, a Two-Six gang member, testified he and a friend, Juan Morales[5], were walking a few blocks away when they heard gunshots. As they ran toward the sound of the gunshots, a green car with plastic covering the driver's window and the rim of the passenger side rear tire missing sped by. Linares could see four or five individuals in the car and heard them yelling "King love, " which he understood to mean that they were members of the Latin King street gang. Linares was familiar with both the Latin Kings and the Two-Six because they were gangs in his neighborhood. Linares continued running until he saw Maldonado holding Socha, who was bleeding from her mouth.

         ¶ 10 That same evening, Chicago Police Officer Esmelita Torres[6] heard a police radio broadcast of shots fired, along with a description of the distinctive green vehicle. At approximately 9:30 p.m., Officer Torres observed a green car with plastic on the driver's-side window double-parked near 2410 South Spaulding Avenue. She radioed for backup and then approached the vehicle. Co-defendant Bentazos was sitting in the driver's seat. Bentazos got out of the car, and Officer Torres handcuffed him and placed him in her squad car. Officers then went into the three-flat at 2410 South Spaulding Avenue and, eventually, apprehended co-defendant Simon[7] and Ricardo Argueta. Officers placed these men in a squad car.

         ¶ 11 Officers recovered a beer bottle, a knife, and a beer can from the vehicle. A fingerprint lifted from the knife matched Simon. Police also recovered cartridge casings from the scene of the shooting and a cartridge case from the center console of the green car. After testing, it was determined that the cartridge case recovered from the green car's console was fired from the same firearm as the cartridges found at the scene of the shooting.

         ¶ 12 Forensic Scientist Ellen Connolly Chapman testified as an expert in the field of trace evidence analysis that clothing from Bentazos and Simon tested positive for gunshot residue. Bentazos's and Simon's hands tested negative for gunshot residue. Defendant, who was arrested later, apparently was not tested for gunshot residue.

         ¶ 13 Chicago Police Detective Adrian Garcia testified that he and his partner, Detective Patrick Finucane, [8] were assigned to investigate the shooting at approximately 8:30 p.m. on Decmber17, 2002. They went to the scene of the shooting and saw that it was secured with yellow crime scene tape and that there were uniformed officers present. They spoke with the officers at the scene, as well as with witnesses, including Maldonado, Linares, and Morales. While still on the scene, Detective Garcia monitored a police radio call of a "non-shooting incident" involving a green car with plastic covering the driver's side window.

         ¶ 14 The detectives eventually went to 2410 South Spaulding Avenue, where they saw the green vehicle along with uniformed officers detaining Bentazos, Simon, and Argueta. The car's rear tire "looked to be like a spare tire with no hubcap, " which was significant because Detective Garcia had learned that the car involved in the shooting also had a rear tire with no hubcap. Detective Garcia requested that the evidence technicians process the green car. After seeing that the subjects were transferred to the police station, the Detectives proceeded to Mount Sinai Hospital to see the victim. They learned that the victim had died from the gunshot wound.

         ¶ 15 Subsequently, Detective Garcia went to the police station and collected articles of clothing from Bentazos, Simon, and Argueta to be tested for gunshot residue. Detective Garcia testified that, at that time, witnesses Maldonado, Linares, and Morales-as well as suspects Bentazos, Simon, and Argueta-were all at the police station. In the early morning hours of December 18, 2002, a line-up including Bentazos and Simon was conducted at the police station. Maldonado, Linares, and Morales each separately viewed the lineup, and none was able to make an identification. Detective Garcia then testified:

"[ASA LYNCH:] Q. After these line-ups, Simon and Bentazos were still in custody at Area 4, correct?
Q. After dealing with Bentazos and Simon, what did you do next in this investigation?
A. We obtained information of two additional offenders.
THE COURT: Sustained. Disregard that answer, ladies and gentlemen." Defense counsel requested a sidebar, which the court granted outside of the hearing of the jury. At the sidebar, defense counsel asked for a mistrial, arguing:
"[ASSISTANT PUBLIC DEFENDER CHRISTL:] Judge, at this time, I would ask-I mean, I know that you sustained my objection and asked the jury to disregard. At this point, I would ask for a mistrial. This was specifically what we covered in our motions in limine. This is why the case got reversed after the first trial.
I thought that you ruled during the motion in limine-I ordered the transcript, but I don't think I got it yet. My recollection was that you ruled that that type of testimony would be inadmissible.
[ASA HOLLAND:] If I may?
THE COURT: Go ahead.
[ASA LYNCH:] When you asked me how I was going to put this testimony, I said I was going to do exactly what I just did. Merely that these two individuals were in custody and no testimony about taking statements from them at all. Not even whether they were spoken to by police which has not even been elicited.
The question that as just asked was after dealing with Bentazos and Simon, what did you do next? He merely said we got information that the two additional offenders [sic]. Absolutely no tie or nexus to these other gentlemen being the source at all. There is not even testimony to this point that the police even took a statement of any kind or had any conversation with Bentazos or Simon. I don't know how else you can actually do it.
The problem last time was-
THE COURT: I am reading the problem.
[ASA LYNCH:] Okay.
[THE COURT: Here is the testimony of Garcia that was critical and very important to the reversal of this case:
'Question posed by the prosecutor:
Besides the witnesses, were co-defendants Simon and Bentazos still at the police station?
Answer: Yes they were, ma'am.
[Q.] Were interviews conducted in the late hours of December 17th and early morning hours of December 18, 2002? Answer. Yes, they were. Question. After interviews were conducted, did your investigation continue?
Answer. Yes, it did, ma'am.
[Q.] Were you looking for any other offenders?
Answer. Yes. Due to our interviews with Mr. Simon and Mr. Bentazos, we were able to obtain two nicknames also involved in the shooting which they gave us.
Defense counsel: Objection.
Court: Sustained. Rephrase your question.
State [Q.]: After interviews were conducted, were you looking for any other offenders or possible offenders?
[A.] Yes, we were looking for two subjects, one by the street name of Chilango.
Lopez testified did you-
Prosecutor [Q.]: Did you see Eduardo Torres when he was brought into Area 4 in the early morning hours of December 19, 2002?
Detective Lopez [A.]: Answer. I did.
[Q.] Did your investigation continue into the homicide of the 15-year-old Ms. Socha at this point?
[A.] Yes.
[Q.] Were interviews conducted?
[A.] Yes.
[Q.] After the interviews were conducted at approximately 3:30 to 3:45 a.m. still on December 19th, did you have occasion to leave Area 4?
[A.] Yes.
[Q.]When you left Area 4, were you going to a specific location?
[A.]Yes. We were directed to 2442 South St. Louis on the first floor.
[Q.] When you say you were directed to 2442 South St. Louis on the first floor, were you specifically looking for someone at that address?
[A.] Yes. I was looking for a male Hispanic named Chilango who also went by -who also had a first name of Alberto who was a male Hispanic approximately five-six, medium build, with a tattoo on his arm which said Beto.' "

         ¶ 16 The court then continued to read this court's Rule 23 Order, in which we described that, under the law, an officer may reconstruct the steps taken in the investigation of a crime, but must not reveal the contents of the conversation itself, and that the officer's testimony must be limited so as not to place into evidence the substance of any out of court statements or conversations for the purpose of establishing the truth of their contents. The trial court read the portion of the Order stating:

"We find the detective's testimony was inadmissible hearsay. The State repeatedly elicited testimony that contained a strong inference that the *** co-defendants implicated defendant in their statement. This exchange when beyond mere questioning concerning the investigatory process and included serial questions to build the inference that the defendant was named by his criminal cohorts."

         After reading this court's prior decision, the trial court denied the motion for a mistrial and instructed the parties:

"THE COURT: This [what happened in the previous trial] is not what happened here. I am going to call the jury out. I am going to tell them to disregard the last question and answer. I want you to simply ask him what was the next thing they did in their investigation that night and move on from there and do not go anywhere near conversations."

         ¶ 17 The jury returned and the court admonished them:

"[THE COURT:] Ladies and gentlemen, you are to disregard the last question and answer."

         The court also admonished Detective Garcia not to mention the fact that he had any conversations with Simon and Bentazos. The following testimony then transpired:

"[ASA LYNCH:] Q. After these line-ups, Detective, what is the next thing you did in your investigation?
[DETECTIVE GARCIA:] A. We-we had information on two additional persons.
THE COURT: Disregard that question and that answer. Ask your next question.
[ASA LYNCH:] Q. What is the next thing you did in this investigation?
A. We were looking for two other subjects.
Q. What information did you initially have about these two subjects?
A. We had nicknames.
Q. What were the nicknames?
A. One by the name of Chilango (phonetic) and the other by the name of Spook.
Q. That evening were you able to determine the identity of this person named Spook?
A. Yes, we were.
Q. Who was that?
A. His name was Eduardo Torres.
Q. At this time, were you able to determine the identity of the person that went by the nickname Chilango?
A. No.
THE COURT: The answer may stand."

         Detective Garcia went on to testify as to how he attempted to locate Torres throughout the morning hours of December 18, but was unsuccessful. Over defense counsel's objection, Detective Garcia testified that he never developed any evidence pointing to Argueta's involvement in this case. He also agreed that he was still trying to "develop information to figure out who this Chilango person was" and that, by late afternoon on December 18, after ...

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