Court of Appeals of Illinois, First District, Second Division
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.
NEVILLE PRESIDING JUSTICE.
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.
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
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
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
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
11 The court denied the request for fees.
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
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 ...