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People v. Melecio

Court of Appeals of Illinois, First District, Fourth Division

September 21, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSE MELECIO, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 14487 The Honorable John Joseph Hynes, Judge, presiding.

          Justices Hall and Lampkin concurred in the judgment and opinion.

          OPINION

          GORDON JUSTICE

         ¶ 1 Defendant Jose Melecio was convicted of first degree murder and unlawful vehicle invasion after a jury trial and was sentenced to consecutive terms of 55 years and 10 years, respectively, for a total of 65 years with the Illinois Department of Corrections (IDOC).

         ¶ 2 Defendant raises a number of issues on appeal, including (1) whether the integrity of the judicial system was undermined and plain error occurred, when the State nol-prossed the felony murder charges prior to trial and then sought and received jury instructions on felony murder, thereby permitting a murder conviction without the State having to prove intent; (2) whether defendant received ineffective assistance of trial counsel when counsel failed to object to the felony murder instructions; (3) whether a felony murder charge was permitted under the Morgan doctrine (People v. Morgan, 197 Ill.2d 404, 447-48 (2001)), which requires that the predicate felony must have an independent felonious purpose, when the State asserted in the indictment that the underlying vehicular invasion was done with the intent to commit murder; (4) whether the one act, one crime rule was violated when the indictment charged that defendant committed vehicular invasion with the intent to commit murder, and the jury was instructed that defendant could be found guilty of felony murder based on vehicular invasion; (5) whether the State failed to establish guilt of murder beyond a reasonable doubt where the State's theory rested on a contradiction that defendant killed his friend to retaliate for acts done by others who the State was then unable to link to the decedent; (6) whether it was error to allow the substantive admissions of witnesses' prior inconsistent statements; and (7) whether the trial court erred by refusing a second degree murder instruction based upon sudden and intense passion from mutual combat where that combat was claimed by the State as the motivation for the murder.

         ¶ 3 Defendant asks this court to vacate his murder conviction or his vehicular invasion conviction or both; or, in the alternative, to reverse his convictions and remand for a new trial; or, in the alternative, to order that his sentence for vehicular invasion not run consecutively to his murder sentence.

         ¶ 4 For the following reasons, this court affirms defendant's murder conviction but vacates his conviction for vehicular invasion.

         ¶ 5 BACKGROUND

         ¶ 6 I. Indictment

         ¶ 7 On August 20, 2010, defendant and codefendant Robert Gonzalez were indicted in a 16-count indictment, stemming from the death of Carlos Aguirre on November 8, 2009. Fourteen of the sixteen counts were for first degree murder. Count VIII is not in the appellate record. The remaining count, count XVI, was for vehicular invasion.

         ¶ 8 Counts III and XIII both charged felony murder committed during the commission of vehicular invasion. Count III charged that defendants:

"without lawful justification, shot and killed [the decedent] while armed with a firearm during the commission of a forcible felony, to wit: vehicular invasion, in violation of chapter 720 Act 5 Section 9-1(a)(3) of the Illinois Compiled Statutes 1992 as amended ***."

Section 9-1(a)(3) of the Criminal Code of 1961 (Code) cited above is the statutory subsection that charges felony murder. 720 ILCS 5/9-1(a)(3) (West 2008). Count XIII added that "during the commission of the offense of first degree murder he personally discharged a firearm that proximately caused death."

         ¶ 9 On November 18, 2013, the State informed the trial court that it was "proceeding" on only counts I, II, IV and XVI. The trial court responded: "State, you are proceeding on counts 1, 2, 4 and 16. All other counts will be Motion State nolle pros." Thus, both counts III and XIII, which were the only counts that cited the felony murder subsection, were nol-prossed.

         ¶ 10 There were four counts remaining after the State's nolle prosequi. Count I charged intentional first degree murder, in that defendants "intentionally or knowingly shot and killed" the victim "while armed with a firearm." Count II charged first degree murder, in that defendants shot and killed the decedent with a firearm "knowing that such act created a strong probability of death or great bodily harm." As already noted above, count XVI charged vehicular invasion, in that defendants:

"knowingly, by force and without lawful justification, entered or reached into the interior of a motor vehicle, to wit: 2010 Toyota Tundra occupied by [the decedent], with the intent to commit therein a felony, to wit: first degree murder."

         ¶ 11 Count IV charged that defendants shot and killed the decedent "while armed with a firearm (and the State shall seek an extended term sentence) in that the murdered individual was actually killed *** during the course of an underlying felony: vehicular invasion, in violation of Chapter 720 Act 5 section 9-1(a)(1) of the Illinois Compiled Statutes 1992 as amended ***."

         ¶ 12 Although count IV charged that the murder occurred "during the course of an underlying felony, " the count did not cite the statutory section for felony murder (720 ILCS 5/9-1(a)(3) (West 2008)), but instead cited the statutory section for intentional murder (720 ILCS 5/9-1(a)(1) (West 2008)).[1]

         ¶ 13 II. Evidence at Trial

         ¶ 14 The evidence established that defendant, the decedent, and the decedent's girlfriend Maria Reyes were all at the Green Dolphin bar drinking on the night of the murder. At some point, there was an altercation at the bar. Defendant was punched by someone (not the decedent) and after security broke up the fight, defendant was escorted out of the bar. Reyes stated to the police that, after she and the decedent entered their vehicle in the parking lot later that same night, the decedent was drunk, and defendant and another man pulled the drunk decedent out of the vehicle. Prior to trial, she stated that she observed something black in defendant's hand and that defendant fired three shots in the decedent's direction. Specifically, Reyes signed a pretrial statement, admitted into evidence at trial and published to the jury, that stated that defendant "leaned towards [the decedent], and she saw him fire three shots in the direction of [the decedent]." However, at trial, she stated in her testimony almost 50 times that she did not recall the events of that night. No gun was recovered and no confession was made by anyone to the murder, but defendant's fingerprints were found both on the inside and outside of the vehicle's doors. Of the four people who Reyes stated were next to the vehicle when the murder occurred-Reyes, the decedent, defendant and the other man-only two took the stand[2] at trial: Reyes and defendant.

         ¶ 15 In addition to Reyes' statements and the fingerprint evidence, the State also presented the testimony of a number of other witnesses, including Arturo Quevado, whom defendant telephoned after defendant was escorted out of the bar. Arturo Quevado testified that he and defendant were lifelong friends and that defendant called Quevado that night to come "pick him up" because "he got into a fight." Quevado picked up defendant in the area of Ashland and Western Avenues and drove to a gas station, where defendant briefly exited the vehicle. Defendant reentered the vehicle with Michael Silva. Quevado testified that they drove to the vicinity of the Green Dolphin and parked nearby. They were four or five vehicles away from another vehicle that they were watching. Although Quevado testified that he did not recall if defendant exited the vehicle, he later testified that he observed defendant approaching the vehicle they were watching, and that there was a man laying on the ground with a woman nearby. Quevado then testified that he observed a man run out of an alley, towards the other vehicle with something shiny in his hands. Quevado then made a u-turn, and as he was making the u-turn, he heard gunshots and observed defendant running back toward his vehicle, which defendant entered. Silva was still in the backseat. Defendant gave Quevado directions to drive in a zigzag pattern, which Quevado did.

         ¶ 16 Michael Silva testified that he also received a phone call from defendant on the night of the murder asking for help. As a result, Silva entered a vehicle driven by Joseph Finnegan, with codefendant Robert Gonzalez as a passenger. During the ride, Gonzalez received a phone call and then informed Silva that they were heading to the Green Dolphin because defendant "got jumped." During the ride, Gonzalez showed Silva a gun that Gonzalez had in his possession. They stopped at a gas station and Silva switched vehicles, entering the vehicle with defendant and Quevado. Silva looked behind them and observed that Gonzalez's vehicle was following them to the Green Dolphin. The two vehicles parked near the Green Dolphin, and defendant exited their vehicle. While defendant was out of the vehicle, Silva heard three or four gunshots. After the gunshots, Quevado started to drive away, but defendant flagged him down and reentered the vehicle. After defendant reentered the vehicle, defendant said "F*** that n***" and "F*** him, he deserved it."

         ¶ 17 Defendant testified that he had a good relationship with the decedent, that they were drinking buddies who had drinks together two or three times a week, and that they drove to the Green Dolphin together on the night of the murder in the decedent's vehicle. At some point, some individuals, who defendant did not know, began hitting him. Defendant was then grabbed from behind and escorted out of the club by security. Defendant did not know why he was punched and did not recognize the individuals who did it. Once outside the club, defendant called Quevado to come pick him up, but he did not call Silva. Some men started chasing defendant and he ran. Later, he observed Quevado driving past him and flagged him down. Then they drove to a gas station so defendant could purchase cigarettes. Silva did not enter their vehicle, and Quevado did not drive defendant back to the vicinity of the Green Dolphin. Quevado and defendant drove to Quevado's house, where Quevado exited, and then defendant drove to Silva's apartment building. Defendant drove to Silva's building to ask Silva to take defendant to someone from whom defendant could purchase cocaine. After purchasing cocaine, defendant drove to his father's house.

         ¶ 18 III. Jury Instructions

         ¶ 19 After both sides rested, the trial court stated that the court and the attorneys had already conducted an "informal conference" off the record concerning jury instructions. However, the court stated that they would now "go over" the instructions again "for the record." The trial court then announced each instruction by number, and the attorneys stated whether they did or did not object. During this process, the trial court repeated that "I'm giving some of these instructions, these-we've had argument off the record."

         ¶ 20 With respect to first degree murder, defendant did not object to People's Instruction No. 19 (Illinois Pattern Jury Instructions, Criminal, No. 7.02 (4th ed. Supp 2009) (hereinafter, IPI Criminal 4th No. 7.02 (Supp. 2009)) which stated:

"To sustain the charge of first degree murder, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of [the decedent]; and
Second: That when the defendant, or one for whose conduct he is legally responsible, did so, he intended to kill or do great bodily harm to [the decedent]; or
He knew that his acts created a strong probability of death or great bodily harm to [the decedent]; or
He was committing the offense of vehicular invasion; and
Third: That the defendant, or one for whose conduct he is legally responsible, was armed with a firearm.
If you find from your consideration of all the evidence that each of one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty."

         ¶ 21 With respect to vehicular invasion, People's Instruction No. 23 (Illinois Pattern Jury Instructions, Criminal, No. 11.94 (4th ed. Supp 2009) (hereinafter, IPI Criminal 4th No. 11.94 (Supp. 2009)) stated:

"To sustain the charge of vehicular invasion, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, knowingly reached into the interior of a motor vehicle; and
Second: That the defendant, or one for whose conduct he is legally responsible, did so by force:
Third: That the motor vehicle was occupied by another person;
Fourth: That the defendant, or one for whose conduct he is legally responsible, did so with the intent to commit therein the offense of first degree murder.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty." (Emphasis added.).

         ¶ 22 IV. Verdict and Sentencing

         ¶ 23 After hearing the jury instructions and closing arguments, the jury deliberated and returned unanimously signed verdict forms finding defendant guilty of both first degree murder and vehicular invasion.

         ¶ 24 On December 18, 2013, defendant filed a posttrial motion for a new trial that raised numerous grounds, including that the trial court erred by overruling "any objections that were made to jury instructions." On April 9, 2014, defendant filed a supplemental motion arguing that the evidence did not support a conviction for murder based on accountability. The trial court denied both posttrial motions and proceeded to sentencing, where defense counsel argued that defendant had "a total lack of criminal background." The trial court then sentenced defendant to 40 years for the murder, with an additional 15 years for a firearm enhancement, for a total of 55 years for the murder conviction. The court then sentenced defendant to 10 years for the vehicular invasion, to run consecutively to the 55-year murder conviction. The trial court then stated: "Counts 2 and 4 will be merged into the first-degree murder charge on Count 1."

         ¶ 25 The mittimus, dated April 9, 2014, stated that defendant was found guilty of count I, "720-5/9-1(A)(1) Murder/Intent to Kill/Injure" (720 ILCS 5/9-1(a)(1) (West 2008)) and count XVI, "720-5/12-11.1 Unlawful Vehicular Invasi[on]" (720 ILCS 5/12-11.1 (West 2008)).[3] Thus, the mittimus states ...


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