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People v. Djurdjulov

Court of Appeals of Illinois, First District, Second Division

September 12, 2017

JOVAN DJURDJULOV, Defendant-Appellant.

         Appeal from the Circuit Court Of Cook County. No. 09 CR 6463 The Honorable Lawrence Edward Flood, Judge Presiding.

          Justice Hyman concurred in the judgment and opinion.



         ¶ 1 A jury found Jovan Djurdjulov guilty on two counts of first degree murder. Djurdjulov argues on appeal that the trial court should have suppressed the statements he made to police, and the court should have granted Djurdjulov's request for fees so that he could hire an expert to analyze cell phone records the prosecution used at trial. We find Djurdjulov's statements admissible, but we hold that the court should have granted Djurdjulov's request for expert witness fees. Accordingly, we vacate the convictions and remand for a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 The Spanish Cobras gang and the Spanish Gangster Disciples (SGD) gang fought for control of areas in Chicago early in 2009. On January 30, 2009, a thrown glass bottle shattered a window in the home of Djurdjulov, a member of the Cobras. Around 1 a.m. on January 31, 2009, a fire started raging through a three-story apartment building on Argyle Street, near Pulaski Road. Members of the SGD lived on the second and third floors of the burned building. Rosanna Ocampo and her daughter, Itzel Fernandez, who lived on the second floor of the building, died from inhaling smoke from the fire. Firemen at the scene smelled gasoline in the building. Police recovered debris from the scene and sent it to a lab to test for accelerants.

         ¶ 4 Police sought to question some members of the Cobras about their whereabouts at the time the fire started. After 6 p.m. on January 31, 2009, a security guard at Roosevelt High School contacted police when he saw Djurdjulov and two other Cobras enter the high school to watch a show in the auditorium. Police officers came into the auditorium and escorted Djurdjulov, Ulices Gomez, and Jamale Hernandez to three waiting police cars that took the three Cobras to the police station for questioning. Djurdjulov told police that he had visited Michael and Noel Santiago shortly after midnight that morning, and he had heard that Franco Avila, another Cobra, set the fire. Police released Djurdjulov, Gomez, and Hernandez.

         ¶ 5 Police again picked up Djurdjulov on February 15, 2009. To check his alibi, they asked him to show them where he was at the time of the fire. He directed police to the area and pointed out the Santiagos' home.

         ¶ 6 Police arrested Djurdjulov on March 10, 2009, in connection with an incident unrelated to the fire. Djurdjulov remained in an interrogation room at the station for about 36 hours, where police questioned him about the fire. Police recorded the questioning. Djurdjulov eventually said that David Vasquez, a former member of the SGD, started the fire, and Vasquez asked Djurdjulov to act as a lookout. Prosecutors charged Djurdjulov with two counts of first degree murder.

         ¶ 7 Pretrial Proceedings

         ¶ 8 Djurdjulov moved to suppress the statements he made to police on January 31, February 15, and March 10 to 12, 2009. The trial court heard testimony from police officers and other persons who saw police with Djurdjulov in the high school. The court concluded that Djurdjulov voluntarily went with police to the police station and voluntarily answered questions about his whereabouts at the time the fire started. The court also found that Djurdjulov voluntarily accompanied police on February 15, 2009. The court watched the recording of Djurdjulov's time in custody from March 10 to March 12, 2009. The court found Djurdjulov's statements voluntary. The court denied the motion to suppress the statements.

         ¶ 9 Djurdjulov expected police to use cell phone records as evidence at the murder trial. Defense counsel filed a motion asking the court for funds so that Djurdjulov could pay an expert to analyze the cell phone records and help with cross-examination of the prosecution's cell phone expert. At the hearing on the motion, Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert. Djurdjulov testified that his aunt paid the fees of his privately-retained attorney. The State offered no evidence to challenge the credibility of Djurdjulov's assertions about his assets.

         ¶ 10 The trial court noted that it had no basis for rejecting defense counsel's assertion that he needed an expert to contest the cell phone evidence. The trial court said:

"[D]urdjulov has] been represented by privately-retained attorneys for the last four years. He in fact may be indigent, but someone's been paying the bills for his representation.
It would seem to me if the issue is the expert fees for the defense of the case, in light of the fact that persons *** have been providing funds to represent him in the case so far, that the issue is is that person able to pay for the expert fees."

         ¶ 11 The court denied the request for fees.

         ¶ 12 Trial

         ¶ 13 The prosecution presented an expert who testified that gasoline permeated the debris police found at the fire. The prosecution admitted that police found no useful fingerprints at the scene. No witness claimed to have seen who set the fire, and no witness claimed to have seen Djurdjulov near the apartment building near the time the fire started.

         ¶ 14 Michael Santiago testified that in 2009, he lived near Cicero Avenue and Lawrence Avenue in an apartment he shared with his brother Noel, Angelita LaSalle, who was Michael's fiancee, and Vivian Quesada, Noel's girlfriend. Noel and Michael belonged to the Cobras. Michael said that on January 31, 2009, Noel came home from work around 1:30 a.m., and told Michael, LaSalle, and Quesada that Djurdjulov was coming to visit. Djurdjulov arrived a few minutes later, stinking of gasoline. Djurdjulov went back out and returned, carrying jeans, and accompanied by Gomez. Djurdjulov went to a bathroom where he changed his clothes. After 2 a.m., Djurdjulov, Michael, Noel, and Gomez went to buy alcohol. Noel alone went into the liquor store. While Michael, Djurdjulov, and Gomez waited in Gomez's car, Michael complained that the car smelled like gasoline. Djurdjulov said, "I burned down a building." After they returned to Michael's home, they saw on television a news report about the fire on Argyle, about a mile from Michael's home. Djurdjulov said, "That's what I did." Later that morning, Michael found Djurdjulov's gasoline-soaked pants in Michael's bathroom. Michael put the pants in the garbage.

         ¶ 15 Michael admitted that when he first spoke with police about the fire, he lied, telling them he did not know Djurdjulov. The second time he spoke with police, he did not tell them Djurdjulov smelled of gasoline or that he confessed to the crime or any other incriminating facts. Michael testified that police arrested him on March 17, 2009, and told him someone had identified him as a shooter in an incident unrelated to the fire. Police questioned Michael about the fire and not about the shooting. He told them that Djurdjulov said he set the fire. Prosecutors never charged Michael in connection with the shooting incident.

         ¶ 16 The parties stipulated that Michael told an investigator working for defense counsel that Djurdjulov had not smelled like gasoline on January 31, 2009. The parties stipulated that Michael also said to the investigator that during the questioning in March 2009, police told Michael that they would release him from custody if he said what police wanted to hear about Djurdjulov. Michael testified that he lied to the defense investigator.

         ¶ 17 LaSalle testified that on January 31, 2009, Noel came home around 1 a.m. Djurdjulov came to visit around 2 a.m., smelling of gasoline. LaSalle corroborated Michael's testimony about Djurdjulov leaving and returning with Gomez and a change of clothes. She also corroborated the testimony that Djurdjulov, Gomez, Michael, and Noel went out to buy alcohol and later that morning Michael discarded clothes Djurdjulov left in the bathroom.

         ¶ 18 LaSalle admitted that when she first spoke to police about the night of January 31, 2009, she said Djurdjulov arrived before midnight on January 30, 2009, and stayed most of the night. She changed her account completely after police arrested Michael. Like Michael, LaSalle told the defense investigator that police said they would release Michael if she and Michael agreed to the police's account of the morning of January 31, 2009. Also like Michael, LaSalle testified that she lied to the defense investigator.

         ¶ 19 Quesada testified that on January 31, 2009, Noel came home around 1 a.m. and, about 10 minutes later, Djurdjulov arrived. Otherwise, she echoed LaSalle's testimony, including initially lying to police and changing her story after police arrested Michael on the shooting charge. Over defense counsel's objections to prior consistent statements, the court permitted Michael, LaSalle, and Quesada to recount both what they said to police after Michael's arrest and to say that their testimony to the grand jury the day after Michael's arrest matched the testimony they gave in court about Djurdjulov's appearance and confession on January 31, 2009.

         ¶ 20 The parties stipulated to the accuracy of cell phone records. The police officer who obtained the records testified: "cell providers *** explain[ed] some of the items that were on there I didn't understand. Actually, they're quite confusing sometimes."

         ¶ 21 Joseph Raschke of the Federal Bureau of Investigation testified that the numbers in the record identified the cell phone that made each call, the cell phone that received the call, and the cell phone towers that transmitted the signals to and from those cell phones. From the location of the tower that transmitted the call, Raschke could approximate the location of the cell phone, within a radius of one or two miles. Records for Avila's phone showed that he made and received several calls after midnight on January 31, 2009, and all used the tower nearest to Avila's home. Calls from Djurdjulov's phone at 12:53 a.m. and 1:06 a.m. used a tower only two blocks from the fire. A call at 1:12 a.m. used a tower near Cicero and Peterson. According to Raschke, the calls showed that Djurdjulov was near the scene of the fire when the fire started, and he left the area soon thereafter.

         ¶ 22 On cross-examination, Raschke admitted that obstructions, or damage to a tower, can affect which tower transmits a call. Raschke did not check for obstructions or damage to towers in the area of the fire and surrounding neighborhoods.

         ¶ 23 The prosecution then played for the jury extended portions of the questioning of Djurdjulov on March 10 to March 12, 2009. At first, Djurdjulov told police that Avila called him on January 30, 2009, and told Djurdjulov that Avila intended to get revenge on SGD. After the fire, Avila spoke to Djurdjulov again and said he used Heet to set the fire. Detectives told Djurdjulov that his account did not fit with cell phone records. Djurdjulov repeated his assertion that he did not go to the scene of the fire until he stopped with Gomez and the Santiagos on the way to the liquor store, around 2:30 a.m. on January 31, 2009. Detectives said:

"Your own cell phone puts you there. ***
*** Everything is point[ing] to you and saying you're there and you're still denying it. And no one's gonna believe your story ***. *** [I]f you say that Franco did the fire you were there with Franco or you knew what Franco was gonna do and you need to come clean who was involved in it, and that is it. Because you were there and that's you[r] way out. I was there I didn't know what they were gonna do there's your way out."

         ¶ 24 After about 24 hours in custody, including 6 hours of questioning, and significantly after detectives told Djurdjulov about the cell phone records, Djurdjulov changed his account, and said he saw the fire when it started. Djurdjulov said he went with Gomez around midnight to drop off some friends with whom they had spent the evening. After they dropped the others off, Djurdjulov needed to urinate. Gomez parked and Djurdjulov got out of the car. He went into an alley to urinate. He saw an empty bottle, near a building where he knew SGD lived. He decided to throw the bottle through the window of the home. As he got to the building, he saw the fire starting and he saw Avila leaving the building. Detectives said someone must have helped Avila. Djurdjulov said he saw a second person in a hoodie leaving with Avila, but he did not recognize that person.

         ¶ 25 Detectives told Djurdjulov that Avila's cell phone records showed that Avila stayed home that night. Djurdjulov said he saw Avila around 7 p.m. on January 30, 2009, several hours before a bottle came through the window of Djurdjulov's home, and Avila said he intended to get revenge on SGD because they shot ...

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