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People v. Jaimes

Court of Appeals of Illinois, First District, Fourth Division

June 6, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DENNIS JAIMES, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 10 CR 6894 Honorable Domenica A. Stephenson, Judge presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Presiding Justice McBride concurred in the judgment and opinion.

          OPINION

          BURKE, JUSTICE

         ¶ 1 Following a jury trial, defendant, Dennis Jaimes, was convicted of first degree murder but acquitted of aggravated discharge of a firearm. The jury also found that the State failed to prove that defendant personally discharged a firearm that caused death. The trial court subsequently sentenced him to 30 years' imprisonment. On appeal, defendant contends that (1) when the jury submitted multiple notes during its deliberations, in which he asserts the jury asked whether it could find him guilty under a theory of accountability despite not being instructed on that theory of guilt, the trial court erred by not rejecting the jury's consideration of the theory and (2) he was denied a fair trial when the court allowed the State to introduce into evidence several statements made by nontestifying co-offenders under the coconspirator exception to the hearsay rule. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On the night of January 19, 2010, William Diaz and Daniel Rodriguez were standing on a street corner when someone dressed in all black walked toward them and shot a firearm in their direction multiple times. Rodriguez was uninjured, but Diaz died from a gunshot wound. After defendant was identified as the shooter, he was indicted with 36 counts of first degree murder of Diaz, 3 counts of attempted murder of Rodriguez, and 1 count of aggravated discharge of a firearm in the direction of Rodriguez. In several of the counts of first degree murder, the State alleged that defendant personally discharged the firearm that caused Diaz's death.

         ¶ 4 Prior to trial, the State filed a motion, which it subsequently amended, seeking to introduce into evidence several incriminating statements made by defendant's alleged coconspirators, including statements made before the shooting of Diaz and statements made in the immediate aftermath of the shooting. For most of the statements, the State sought to admit them as statements made by coconspirators in furtherance of a conspiracy, and for others, the State sought to admit them as tacit admissions by defendant, who allegedly was present when the statements were made. Defendant responded to the motion, objecting to the admission of the various statements, in part because he was not involved in any conspiracy and the statements allegedly made in his presence did not qualify as tacit admissions. But regardless, according to defendant, he argued that the trial court should hold a pretrial hearing with witness testimony to determine whether the statements should be admissible. The trial court rejected defendant's request for a hearing, and based on the State's proffer of evidence contained in its motion, it allowed most of statements to be introduced at trial under the coconspirator exception to the hearsay rule but also allowed certain statements made allegedly in defendant's presence to be admitted as tacit admissions.

         ¶ 5 The case proceeded to trial, where the State pursued only three of the counts against defendant. One count was for first degree murder in that defendant intentionally or knowingly shot and killed Diaz, and another count was for first degree murder in that defendant shot and killed Diaz knowing that such an act created a strong probability of death or great bodily harm to Diaz. For both counts, the State alleged that, during the commission of the offenses, defendant personally discharged the firearm that proximately caused Diaz's death. The final count was for aggravated discharge of a firearm in that defendant knowingly or intentionally discharged a firearm in the direction of Rodriguez.

         ¶ 6 A. Opening Statements and Trial

         ¶ 7 In the State's opening statement, it informed the jury that its evidence would show defendant armed himself on the night in question looking to shoot a rival gang member and did so when he fired his weapon at Diaz and Rodriguez, which resulted in Diaz's death.

         ¶ 8 The evidence at trial showed that, during January 2010, there was an ongoing feud between the Two-Six and Latin Kings gangs. On January 19, 2010, members of the Two-Six gang were at Luis Aguado's house, including Victor Perez, Gilberto Fuentes, Ruben Maldonado, Eric Jaro, Carlos Ruiz, Cesar Azteca, defendant, and possibly another person nicknamed "Creeper." The State introduced much of what occurred while the group was at Aguado's house through the substantive admission of the grand jury testimony of Aguado, Perez, and Fuentes, who all testified at trial.

         ¶ 9 While the group was hanging out, some of them, in particular Aguado and Maldonado, began discussing shooting and killing a member of the Latin Kings. Maldonado remarked that the group had to start retaliating more against the gang. The group discussed using Azteca's vehicle, and defendant stated that, if they were serious about the plan, he could obtain a firearm. The group's plan was to drive around the territory of the Latin Kings and search for individuals who were bald and wearing baggy clothes with the gang's colors. Although many in the group were eager to participate, only Jaro, defendant, Ruiz, and Maldonado went, although Creeper may have also joined them. Ruiz volunteered to be the driver, and as defendant and Maldonado were walking to Azteca's minivan, Aguado heard them discussing which one wanted to be the shooter.

         ¶ 10 Later that night, at around 9 p.m., Diaz and Rodriguez, both members of the Latin Kings, were standing near the corner of 27th Street and Christiana Avenue in Chicago. At the time, according to Rodriguez, who testified at trial, they were concerned about retaliation from another gang. It was dark, and while they were outside waiting for their friend, Carlos Andrade, Rodriguez observed an individual dressed in all black walking toward them. Although Rodriguez could tell the person was male, he could not immediately determine the person's race. When that person was about seven feet away, Rodriguez turned his head away and heard multiple gunshots. Rodriguez looked back toward the person, who he identified at trial as defendant, and saw defendant shooting in his and Diaz's direction. Once the shooting stopped, Rodriguez noticed Diaz was bleeding and called 911. Rodriguez was uninjured, but Diaz ultimately died as a result of a single gunshot wound.

         ¶ 11 The police arrived shortly afterward. A responding officer told Rodriguez to leave the area, which Rodriguez did without mentioning anything about the shooting. During the police's search of the area, they did not recover any shell casings, indicating that a revolver had been used. The police also reviewed the 911 calls of the shooting and located Rodriguez's number. An officer called Rodriguez, but he told the officer that he did not know anything about the shooting and only called because he saw someone had been shot. Later during the investigation, a detective contacted Rodriguez, and they met, but Rodriguez again asserted he did not know anything about the shooting.

         ¶ 12 The majority of what occurred after the shooting concerning members of the Two-Six gang came in through the substantive admission of the grand jury testimony of Aguado, Perez, and Fuentes.

         ¶ 13 According to Aguado's grand jury testimony, the night of the shooting, Jaro returned to Aguado's house with the keys to Azteca's vehicle. Aguado and Azteca both entered Azteca's vehicle, where Jaro told Aguado that defendant was "a crazy a***" and "snapped." Aguado interpreted Jaro's comments to mean that defendant did the shooting. Also in the vehicle, Aguado heard Maldonado telling Azteca not to worry about any evidence of the shooting being in his vehicle because the shooter had jumped out of the vehicle, ran through a gangway and then fired the shots. At one point, according to Aguado, Maldonado told Azteca that "I caught a flake on the next block," meaning a Latin King had been shot. Maldonado cautioned the occupants of the vehicle to be careful and perhaps stay inside because the Latin Kings were probably going to retaliate. Later that night while the group was driving around in Azteca's vehicle, defendant received a phone call and learned that the person who had been shot was dead and that he was a "chief" in the Latin Kings. In response, defendant smiled, laughed, and displayed a Two-Six gang sign. Aguado asked defendant who shot the Latin King, and defendant responded by again displaying a Two-Six gang sign.

         ¶ 14 According to Perez's grand jury testimony, the day after the shooting, he saw Maldonado on the street, and they walked together to the residence of a friend, Andrew Linares, who was in the process of moving. Maldonado told Perez that they had "smoked a King" the previous night, which Perez interpreted as killing a member of the Latin Kings. They arrived at Andrew's residence, where they joined Andrew and Andrew's brother, Jorge Linares.[1] There, Maldonado told Perez in more detail what happened. Maldonado said the group found a Latin King near the intersection of 27th Street and Christiana Avenue, defendant jumped out of the vehicle, and shortly thereafter, Maldonado heard multiple gunshots. Defendant came running back to the vehicle, and they sped away.

         ¶ 15 According to Fuentes's grand jury testimony, on the day after the shooting, he went to Aguado's house, where Aguado told him that the group had killed a Latin King. Fuentes "guess[ed]" that defendant had been the shooter. The next day, Fuentes was with Aguado and Jaro, when Jaro told Fuentes about the shooting, specifically that defendant was the shooter. The day after Fuentes saw Jaro, Fuentes saw Maldonado, who was bragging about killing a Latin King. Maldonado said that the group had parked a block away, ran through a gangway, and shot a Latin King, though he did not say who had been the shooter. At trial, during cross-examination, Fuentes testified that, on January 21, 2010, a fellow member of the Two-Six gang, "Poncho," was shot and killed, and on that same date, Fuentes himself was shot at by members of the Latin Kings.

         ¶ 16 On February 2, 2010, the police executed an unrelated search warrant on Andrew's residence, found a handgun and drugs, and arrested him. Andrew, who testified at trial, admitted to the police that he was a member of the Two-Six gang and that the contraband they found was his. Because of his gang affiliation, an officer asked if he had heard anything about "a shooting." Andrew, who believed he would help his own case by giving the police information, told the officer that an "affiliate member" told him about a shooting that occurred around January 20. Andrew informed the police that, around that date, he was moving out of an apartment with the help of Jorge, when Perez and Maldonado came over. Maldonado told Andrew that he was driving around with defendant in the territory of the Latin Kings the previous night. Maldonado said he observed two males on the street corner on Christiana Avenue, he and defendant exited the vehicle, and "there were shots fired." However, Andrew acknowledged at trial that he told the police about defendant's involvement during a second interview, not the initial one. Andrew also told the police that, a couple days after he moved, he was walking down the street with Ruiz, who became paranoid when a vehicle passed them. Ruiz explained to Andrew that "they had kicked off the war between the Latin Kings and the Two-Six" gangs, and Ruiz "thought they were coming back to retaliate." Andrew ultimately received probation based on the charges filed against him.

         ¶ 17 After the police spoke to Andrew, they questioned Jorge in an attempt to corroborate Andrew's claims, and Jorge provided similar information. As a result, the police believed that defendant, Maldonado, Jaro, and Ruiz were involved in the shooting death of Diaz. The police subsequently brought Maldonado, Aguado, Fuentes, and Perez to the police station for questioning. Although the police recorded Maldonado's interview, they did not record the interviews of Aguado, Fuentes, or Perez. Because their stories generally were consistent with one another, the police thought they were telling the truth. Later that same day, the police brought defendant to the police station for questioning, but he was eventually released.

         ¶ 18 After Aguado, Fuentes, and Perez had been interviewed by the police, they testified before a grand jury. Some days later, the police interviewed Andrade, and based on that interview, they needed to interview Rodriguez again, who at the time was on special gang probation. On February 24, 2010, Rodriguez, who had recently been arrested for reckless conduct, was in police custody. The police interviewed Rodriguez in connection with the shooting of Diaz, during which he identified defendant in a photo array as the shooter. The police subsequently arrested defendant, and Rodriguez identified him again in a lineup as the shooter.

         ¶ 19 As previously mentioned, the majority of the evidence concerning the planning and execution of the shooting of Diaz was introduced through the substantive admission of the grand jury testimony of Aguado, Perez, and Fuentes. At various points in the trial, they each denied making certain statements to the grand jury or could not remember making certain statements. Additionally, all three testified that the police threatened to charge them with murder if they did not cooperate. The police officers and assistant state's attorneys who testified for the State at trial all denied the allegations made by Aguado, Perez, and Fuentes.

         ¶ 20 In defendant's case, Cook County probation officer Mark Dovin testified that, while Rodriguez was on probation, he reported to Dovin multiple times in January and February 2010 as a condition of his probation. At all times, Rodriguez denied knowing anything about a shooting or the gang conflict between the Two-Six and Latin Kings gangs.

         ¶ 21 Jorge also testified that, at some time in January 2010, he was helping his brother move when Maldonado and Perez arrived. Although Jorge did not hear all of the ensuing conversation between Andrew, Maldonado, and Perez, he heard Maldonado mention something about a shooting near 27th Street and Christiana Avenue, but Maldonado never mentioned who the shooter was. Jorge also confirmed that he gave a statement to an assistant state's attorney in early February 2010, wherein he indicated that Maldonado mentioned to Perez and Andrew that he (Maldonado) had taken care of business the night of the shooting. ¶ 22 B. Jury Instructions

         ¶ 23 During the jury instructions conference, the parties agreed to several instructions. One informed the jury that defendant had been charged with first degree murder and aggravated discharge of a firearm. Another told the jury the State had alleged that, during the commission of the first degree murder, defendant personally discharged the firearm that caused Diaz's death. Other instructions provided the jury with the elements necessary to prove first degree murder, the elements necessary to prove defendant personally discharged the firearm that caused Diaz's death, and the elements necessary to prove aggravated discharge of a firearm. Another instruction informed the jury that, if it found defendant not guilty of first degree murder, it should not consider the allegation that defendant personally discharged the firearm that caused Diaz's death. Conversely, this instruction informed the jury that, if it found defendant guilty of first degree murder, it should consider whether the State had proven beyond a reasonable doubt that defendant personally discharged the firearm that caused Diaz's death.

         ¶ 24 Defendant, however, requested a non-Illinois pattern jury instruction that would have informed the jury that he was not charged under a theory of guilt by accountability or conspiracy and directed the jury to limit its consideration of the case solely to whether the evidence at trial proved he directly committed the offenses. The requested instruction also would have informed the jury that, if it concluded that someone else might have directly committed the offenses with defendant's help in some manner, then it must find him not guilty. The State objected to the instruction, arguing that it did not help explain the issues of the case and would confuse the jury. The trial court rejected the requested instruction, finding that the other instructions adequately covered the issues of the case.

         ¶ 25 C. Closing Arguments

         ¶ 26 In the State's closing argument, it contended that the evidence showed defendant shot and killed Diaz and shot at Rodriguez. In defendant's closing argument, he contended that, for various reasons, Rodriguez could not be believed as a witness. And beyond Rodriguez's testimony, defendant posited that the other evidence connecting him to the shooting could be explained away by various reasons, including witnesses trying to protect themselves or police coercion. Lastly, defendant highlighted the evidence indicating that Maldonado was the shooter. ¶ 27 D. Jury Deliberations

         ¶ 28 During the jury's deliberations, the jury sent out two notes. The first asked: "Can we find guilty of first degree but not guilty of discharging and aggravated?" The second asked: "Please define what is intended as an 'act' in first degree murder." The trial court considered the first question first. Both parties discussed the note and were unclear exactly what the jury meant. The court attempted to interpret the question and construed it as asking "can they find him not guilty of personally discharging a firearm-if they can find him not guilty of discharging a firearm and not guilty of aggravated discharge of a firearm, that answer would be yes." One of defendant's attorneys cautioned about "speculat[ing]" as to the jury's question and suggested asking the jury to clarify its question. An assistant state's attorney agreed that asking the jury to clarify its question was appropriate but suggested different wording from defendant's attorney. Another of defendant's attorneys suggested that the trial court refer the jury to specific instructions and if it still had a question, to be more specific. In response, the court noted that the jury's question was one of law, which it was "supposed to answer," if possible, and simply referring the jury back to the original instructions may not answer the question. The parties then agreed that the court should have the jury clarify its question. The court proposed responding to the jury with: "Please clarify your question," and asked if either party had an objection. Neither party objected, and the court instructed the jury accordingly.

         ¶ 29 After answering the jury's first question, the trial court considered the second question. The court noted that Illinois Pattern Jury Instructions, Criminal, No. 4.01 (approved July 18, 2014) (hereinafter IPI Criminal), which defined "act" as including "a failure or omission to take action," was inapplicable based on the facts of the case, to which both parties agreed. The court further determined that the question was one of fact and asked for the parties' input. One of defendant's attorneys highlighted the non-Illinois pattern jury instruction it had unsuccessfully proposed during the instructions conference related to guilt by accountability. In response, the court noted that the instruction did not "have any case law cited," so it could not be said that the instruction accurately stated the law. The court asserted that it would not give the instruction "even in light of [the jury's] question." The court then proposed the following language: "You have received the evidence and the instructions. Please continue to deliberate." The court asked if there was any objection, and neither party objected. The court instructed the jury accordingly.

         ¶ 30 Immediately after the trial court responded to the jury's second note, the jury sent out a third note, which asked: "Are each of the three charges independent of each other? If not, which charges must be in tandem?" After reading the question, the court remarked that the question "was even more confusing" and noted that the jury could not even consider the personal discharge allegation until it first found defendant guilty of first degree murder. In response, an assistant state's attorney observed that an already provided instruction informed the jury of that, but "apparently [the jury was] not following or understanding it." One of defendant's attorneys asserted that she did not understand how the jury could view the charges or the personal discharge allegation as "in tandem considering the evidence that [it] received is only one person." Another of defendant's attorneys suggested pointing the jury to People's instruction No. 23, or IPI Criminal No. 28.04, which instructed the jury to only consider the personal discharge allegation if it first found defendant guilty of first degree murder. Conversely, that instruction directed the jury not to consider the personal discharge allegation if it found defendant not guilty of first degree murder.

         ¶ 31 In response, the trial court noted that it could not direct the jury to just one instruction to sufficiently answer its question and that it was "not supposed to highlight any one instruction over another." Another one of defendant's attorneys suggested simply instructing the jury to "refer to your jury instructions." The State proposed: "[R]efer back to the jury instructions. The answer is in the jury instructions." One of defendant's attorneys indicated that they would "agree with that" response. The court then proposed the following language: "You have received all of the evidence and the instructions. Please continue to ...


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