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People v. Rodriguez

Court of Appeals of Illinois, First District, First Division

June 4, 2018

SEBASTIAN RODRIGUEZ, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 08 CR 21347 Honorable Michael J. Howlett, Jr. and Neera L. Walsh, Judges Presiding.

          PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Mikva dissented in part, with opinion.



         ¶ 1 This case is before us on remand from a supervisory order of our supreme court. Fifteen-year-old Sebastian Rodriguez was charged with first degree murder in connection with the shooting of thirteen-year-old Sameere Conn on October 1, 2008. At the time of the offense, 15-year-old defendants charged with first degree murder were automatically excluded from juvenile court jurisdiction. Sebastian was tried, convicted, and sentenced as an adult in criminal court. After a jury found Sebastian guilty of murder, the circuit court sentenced him to 50 years in prison: 25 years for the murder and 25 additional years pursuant to a then-mandatory firearm enhancement.

         ¶ 2 In this direct appeal, Sebastian argued that (1) the circuit court erroneously denied his motion to suppress evidence found during a search of his home, (2) expert testimony identifying a revolver found in his home as the murder weapon was improperly admitted without a hearing to determine if it was based on generally accepted scientific methodologies, and (3) a 50-year sentence for an offender who was 15 years old at the time of his offense was unconstitutional.

         ¶ 3 Shortly after Sebastian filed his notice of appeal, the Illinois legislature raised the age of automatic transfer from juvenile court to criminal court for defendants charged with first degree murder from 15 to 16 years of age (see Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending section 5-130(1)(a) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130(1)(a)))). The legislature also adopted additional sentencing guidelines for defendants who were under the age of 18 at the time of their offenses and who were tried as adults, including making firearm enhancements discretionary, rather than mandatory (see Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105)). In supplemental briefing, Sebastian argued that these amendments should apply to his case, pending on appeal.

         ¶ 4 In our initial opinion, issued on May 8, 2017, we agreed with Sebastian that the amendment increasing the minimum age for mandatory transfer to criminal court applied to cases, like his, that were pending on appeal when the amendment took effect. We affirmed the jury's guilty verdict for first degree murder, vacated Sebastian's sentence, and remanded this matter to the juvenile court for resentencing. The State sought review of that decision by the Illinois Supreme Court. Six months later, our supreme court decided, in People v. Hunter, 2017 IL 121306, ¶¶ 36, 43, that the amendment to the automatic transfer provision applied only to cases that were pending in the circuit court when the amendment took effect, but not to those cases pending on appeal. Accordingly, on January 18, 2018, the supreme court issued a supervisory order in which it denied the State's petition for leave to appeal but directed us to vacate our earlier judgment and reconsider this case in light of Hunter. People v. Rodriguez, No. 122467 (Ill. Jan. 18, 2018) (supervisory order).

         ¶ 5 There is no question that the holding in Hunter applies in this case and that therefore our initial ruling that the amendment to the automatic transfer provision applies to Sebastian must be vacated. Hunter also holds that the amended sentencing guidelines apply only to sentencing hearings held after those amendments took effect. Hunter, 2017 IL 121306, ¶¶ 54-56. Although juvenile defendants who receive new sentencing hearings on remand must be sentenced in accordance with the amended guidelines, contrary to Sebastian's position, the new guidelines provide no independent basis for remand and resentencing.

         ¶ 6 There is no reason to revisit most of the issues raised in this appeal and decided in our initial opinion, as they are not impacted by Hunter. We will restate those aspects of our initial opinion here since our previous judgment is now vacated.

         ¶ 7 There are two issues that we did not previously reach that we must now decide and that have been fully briefed by the parties both in their original briefs and in supplemental briefs filed after our supreme court remanded this case for our reconsideration in light of Hunter. Those issues are whether defendant's 50-year sentence violates the eighth amendment and the proportionate penalties clause. We now hold, in accord with several other panels of this district, that defendant's 50-year sentence, pursuant to which he will not be eligible for release until the age of 65, is not a de facto life sentence and therefore consideration of the "distinctive attributes of youth" articulated by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460, 471-72 (2012), and Montgomery v. Louisiana, 577 U.S. ___, ____, 136 S.Ct. 718, 733 (2016), was not required. In addition, defendant's sentence does not violate the proportionate penalties clause. We therefore affirm the judgment and sentence on the charge of first degree murder.

         ¶ 8 I. BACKGROUND

         ¶ 9 A. Pretrial Proceedings

         ¶ 10 Nine days after Sameere Conn's death, Chicago police obtained a warrant to search Sebastian Rodriguez's home for evidence related to the shooting. In the complaint for the search warrant, Detective Ricky Bean identified two eyewitnesses who testified before a grand jury that they knew Sebastian and saw him, dressed in a hooded sweatshirt, fire shots into the convenience store where Sameere was killed, as well as a third eyewitness who identified Sebastian as the individual he saw looking through the glass window of the store's door just before shots were fired through that window. According to the complaint, officers also learned from two other witnesses that Sebastian was known to possess a "kill list" of potential victims that included Sameere. Finally, the complaint alleged that, in connection with prior arrests, Sebastian had given the address 10744 South Hoxie Avenue in Chicago as his home address.

         ¶ 11 Finding this sufficient to establish probable cause, the circuit court issued a warrant to search Sebastian's home for "[o]ne dark colored or grey hooded sweat shirt, [o]ne document containing a list of individual names, [a]nd one handgun." Officers executed the warrant on October 11, 2008, retrieving a revolver from under a floorboard in the bathroom and a number of hooded sweatshirts from elsewhere in the home.

         ¶ 12 Sebastian was charged by grand jury indictment with first degree murder.

         ¶ 13 In his motion to suppress filed on April 26, 2010, Sebastian argued that the evidence recovered during the October 11, 2008, search should be excluded because, even if officers had probable cause to arrest him, they had no reason to believe that specific evidence would be found in his home 10 days after the shooting.

         ¶ 14 Although an evidentiary hearing was held on Sebastian's motion to suppress, the testimony offered related only to the scope of the search and the manner in which it was conducted, issues that are not raised in this appeal. The circuit court denied Sebastian's motion, explaining that, in its view, when officers have "a strong identification of a suspected shooter and that person's home, " then "it is not beyond logic, nor *** beyond the law, to have probable cause to see if in that person's place of residence, the place they call home, the place in which they keep their items, that there might be evidence of the crime there."

         ¶ 15 On May 9, 2013, Sebastian moved for an evidentiary hearing, pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), on the admissibility of expert testimony he expected the State to introduce linking the gun found in his home to a bullet recovered from the scene of the crime. Although he acknowledged that such testimony had historically been admitted by courts, he insisted a Frye hearing was needed because the reliability of the methodologies employed by ballistics experts had recently been questioned in the scientific community.

         ¶ 16 The circuit court disagreed and denied Sebastian's motion. Noting that it was aware of no published opinion of any court concluding that firearm identification evidence was not generally accepted in the scientific community, the court concluded that Sebastian's concerns went to the weight and not to the admissibility of the evidence.

         ¶ 17 B. Trial

         ¶ 18 A four-day trial in this case began on February 4, 2014. Because Sebastian does not contest the sufficiency of the evidence to support his conviction, we include only a brief summary of the trial testimony, with a fuller recitation of the firearms identification testimony, to provide context for the evidentiary issues raised on appeal.

         ¶ 19 At approximately 8 p.m. on October 1, 2008, Sameere walked home from nearby Trumball Park after a football game with a group of his friends from school. Sameere and two other boys stopped to purchase snacks at Hook's Finer Foods, a convenience store located at 106th Street and Bensley Avenue in Chicago, while two other friends waited outside. A handful of people were in the store at the time: the cashier, the owner of the building, and a few customers, including an individual known as "Tone" or "Tony, " who was known to frequent the store. Sameere was near the front of the store waiting to make his purchase when, according to witnesses, he was shot multiple times through a window in the front door of the store.

         ¶ 20 Joseph Neal and John Rodgers testified that, on the evening of October 1, 2008, they were waiting across the street from Hook's Finer Foods for Sameere and the others when they saw Sebastian, who they knew from school and regularly saw around the neighborhood, approach the store. According to Joseph and John, Sebastian looked at them, put the hood of his sweatshirt up, and started firing a gun into the store. At trial, both boys insisted that Sebastian's sweatshirt was red-Joseph said "[i]t was red, same red as he always had"-and denied previously telling officers and a grand jury that it was blue and gray. Joseph also denied telling the grand jury that he and John were standing farther away from the store, near some offices. However, Joseph acknowledged that he initially told officers and a television reporter that he was inside the store and saw Sebastian tap on the glass before shooting. When asked why he lied, Joseph explained that he thought the better vantage point would make him more believable: "I knew who I seen and I really wanted [Sebastian] to get got for what he did, that's why I said all of that."

         ¶ 21 Anthony Ray (also known as "Tone" or "Tony"), who was in custody for failing to appear as a witness in this case, acknowledged his previous convictions for stealing a car and for selling drugs and that he was a diagnosed schizophrenic who took medication for that condition. Anthony testified that he was at Hook's Finer Foods just before 8 p.m. on the evening of October 1, 2008, and saw a light-skinned person wearing "a black hoody" standing outside just before shots were fired through the front door of the store. Although Anthony at first told officers that he did not see the shooter, he identified a photo of Sebastian for police officers several days later, writing on the photo, "I saw him shoot through the window. Positive." However, at trial Anthony indicated that his identification was influenced by "two young kids" who were also in the store at the time of the shooting and were taken to the police station with him for questioning. Anthony explained: "I didn't personally, personally, like myself, describe that-the person that did the shooting ***. It's kind of like, kind of like I put two and two together. I seen a face and a hoody and everybody else saying they knew his name and they knew everything that happened."

         ¶ 22 The State called two friends of Sameere's, Kiante Lilly and Mario Martinez, to describe Sebastian's statements and conduct prior to the shooting. Kiante testified that, at Sameere's request, he set up a three-way telephone call in late September to try to resolve "a dispute" between Sameere and Sebastian. Although Kiante told the grand jury that, during that conversation, Sebastian said he had a "death list" and told Sameere "[y]ou on there, too, boy, " at trial Kiante denied such a list was ever discussed, characterizing the call as nothing more than "a friendly conversation."

         ¶ 23 Mario testified that a month before the killing, in September 2008, defendant told him that he was going to kill Sameere. Mario also testified that Sebastian got out of a green truck and approached Mario on the evening of October 1, 2008, asked Mario if he wanted "to go take a ride, " and showed him a gun-a revolver, "I don't really know, like a .38"-that Sebastian had wrapped in a sweater. Mario declined and went inside. Although Mario heard shots soon after, he did not learn that Sameere had been killed until the next morning and did not tell officers about his encounter with Sebastian until they sought him out for an interview 10 days later.

         ¶ 24 The physical evidence in this case consisted of (1) a medium caliber lead bullet fragment recovered from Sameere's body; (2) a fired bullet recovered from a shelf inside Hook's Finer Foods on October 1, 2008; (3) a gunshot residue collection kit consisting of swabs of each of Sebastian's hands plus a control swab, which was administered by police officers shortly after midnight on October 2, 2008; (4) a blue steel .357 Dan Wesson revolver containing six .357-magnum caliber unfired cartridge cases, retrieved from under the floorboards of the bathroom during the October 11, 2008, search of the home at 10744 South Hoxie Avenue in Chicago; and (5) two gray and five black "hoody jackets" also recovered during that search.

         ¶ 25 Brian Mayland, a pattern evidence program manager for the Illinois State Police forensic sciences command, testified as an expert in the field of toolmark and firearm identification. Mayland previously worked for 17 years as a forensic scientist in firearms and toolmark identification and, for just over one year, as a laboratory director. Although his undergraduate degree was in business, Mayland testified that he had completed specialized training in the field of firearms identification, including a two-year training program conducted by the Illinois State Police, and had testified as an expert in the field approximately 80 times.

         ¶ 26 Mayland explained that a cartridge consists of four basic components: the case; the powder inside the case; the bullet, which is seated inside of the case; and the primer, a pressure-sensitive chemical compound located in the head of the case. When a gun is fired, the primer is struck, the resulting spark ignites the powder, gasses from the burning powder create pressure, and the pressure forces the bullet from the mouth of the cartridge down the barrel where rifling- raised and lowered areas known as "lands" and "grooves"-form a twisting pattern along the inside of the barrel that causes the bullet to spin. Mayland testified that, as a firearm analyst, he uses a comparison microscope to examine two bullets or cartridge cases and compare the marks that are left behind on those items as a result of the firing process. Certain identifying features- like the caliber of the bullet, the number and width of the grooves in the rifling, and the direction of the twist-are known as "class characteristics"; they are present at the time of manufacture and common to an entire class of firearms. Other marks are created by imperfections that develop in a gun over time, as it is fired, and can be unique to a particular gun.

         ¶ 27 In this case, Mayland examined the fired bullet recovered from the scene of the crime and determined that it was a .38-caliber bullet jacket with six lands, six grooves, and a right-hand twist. He concluded that the metal fragment recovered from Sameere's body was too mutilated to be suitable for comparison. Mayland then test fired the revolver recovered from Sebastian's house, shooting four bullets into a tank of water, which slows the bullets without damaging them. He compared the test shots to each other to determine if he "could identify test shot with test shot, " something he acknowledged is not always possible. In this case he determined that it was. He then compared the test shots side by side with the fired bullet under a comparison microscope. It was Mayland's opinion "that the fired bullet jacket was fired in that firearm."

         ¶ 28 Defense counsel objected to Mayland providing this conclusion without elaborating on the specific similarities or differences between the compared specimens that he relied upon as the basis for his opinion. The court sustained the objection, pending further inquiry. When asked to elaborate, Mayland stated that he "saw a sufficiently similar pattern of individual characteristics that allowed [him] to form an opinion." Specifically, "[t]here were striated marks that lined up when [he] was doing the comparison from the evidence bullet to the test fired bullet." Defense counsel again objected, but this time the circuit court overruled the objection.

         ¶ 29 On cross-examination, Mayland acknowledged that six is the most common number of lands and grooves and it is "very common" for a revolver to have six lands and grooves with a right-hand twist. Based on Mayland's experience, he believed that hundreds of guns in Chicago could have those same characteristics, noting, however, that he could not be more specific because gun manufacturers "are very close" with such information.

         ¶ 30 Mayland also noted that the bullet jacket he analyzed was "badly mutilated, " consistent with it having struck something. "Based on the condition of the bullet jacket, " he said he measured at least two and "probably three" lands and grooves, although he did not know that for certain and did not document his measurements in his notes. Mayland acknowledged that none of the test shots matched the fired bullet casing exactly. However, he also stated that "no two test shots will ever look exactly the same." Mayland insisted that, in this case, "there was a sufficiently similar pattern" between the test shots and the fired bullet case for him to form his opinion. Mayland agreed both that there is no nationally recognized standard to determine that the patterns were close enough to have been generated by the same gun and that his opinion was a subjective one, not capable of verification by objective testing.

         ¶ 31 On redirect examination, Mayland reiterated that he has compared tens of thousands of bullets and cartridge cases over his career, that he followed all Illinois State Police lab protocols, and that he used methods commonly accepted in the field of firearms identification. Mayland confirmed that nothing he was asked during cross-examination affected his opinion that the bullet he analyzed was fired from the revolver found in Sebastian's home.

         ¶ 32 Mary Wong, a forensic scientist with the Illinois State Police forensic sciences division, testified as an expert in the field of gunshot residue analysis. Wong tested the swabs from the residue collection kit administered to Sebastian at 12:30 a.m. on October 2, 2008, and the hooded sweatshirts retrieved from his home. None of the items tested positive for gunshot residue. Although Wong found two "tricomponent particles" on the sample taken from Sebastian's left hand and one on the sample taken from his right hand, she explained that at least three particles from the same sample are required to make a positive identification. All Wong could conclude from her analysis was that Sebastian "may not have discharged the firearm with either hand" and, "if he did, then the particles were either removed by activity or not deposited or not detected by the procedure." Although tricomponent particles are found in fireworks and car airbags in addition to gunshot residue, Wong stated that other particles one would expect to find following contact with those items ...

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