Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, Illinois. No. 03 CR
01532(04) The Honorable Thomas V. Gainer, Jr., Judge
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of
the Court, with opinion. Justices Lavin and Pucinski
concurred in the judgment and opinion.
FITZGERALD SMITH PRESIDING JUSTICE.
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. 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
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
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People v. Ochoa, No. 1-05-1848 (2007) (unpublished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People v. Ochoa, No. 1-05-1848 (2007) (unpublished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
5 Defendant was tried again in 2013 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. 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, 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 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 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,  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
"[ASA LYNCH:] Q. After these line-ups, Simon and
Bentazos were still in custody at Area 4, correct?
[DETECTIVE GARCIA:] A. Yes.
Q. After dealing with Bentazos and Simon, what did you do
next in this investigation?
A. We obtained information of two additional offenders.
[ASSISTANT PUBLIC DEFENDER CHRISTL:] Objection.
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
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
Detective Lopez [A.]: Answer. I did.
[Q.] Did your investigation continue into the homicide of the
15-year-old Ms. Socha at this point?
[Q.] Were interviews conducted?
[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?
[Q.]When you left Area 4, were you going to a specific
[A.]Yes. We were directed to 2442 South St. Louis on the
[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."
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."
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
[ASSISTANT PUBLIC DEFENDER CHRISTL:] A. Objection.
THE COURT: Disregard that question and that answer. Ask your
[ASA LYNCH:] Q. What is the next thing you did in this
A. We were looking for two other subjects.
Q. What information did you initially have about these two
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?
[ASSISTANT PUBLIC DEFENDER CHRYSTL:] Objection.
THE COURT: The answer may stand."
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 ...