Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. No. 11 CR 17776
Honorable Gregory Ginex, Judge Presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Stephanie T. Puente, of the State Appellate Defender’s
Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and
Lisanne P. Pugliese, Assistant State’s Attorneys, of
counsel), for the People.
PRESIDING JUSTICE MIKVA delivered the judgment of the court,
with opinion. Justice Walker concurred in the judgment and
opinion. Presiding Justice Griffin dissented, with opinion.
1 On the night of October 2, 2011, Miguel Torres and Roberto
Vargas approached a car where Jose Salgado and Angel Cintron
were sitting, and Mr. Torres fired two shots toward Mr.
Salgado, who was in the driver's seat of the car. Mr.
Torres was convicted of attempted first degree murder while
personally discharging a firearm (720 ILCS 5/8-4(a) (West
2010); 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2010)) and
aggravated discharge of a firearm in the direction of a
vehicle that Mr. Torres knew or reasonably should have known
was occupied by a person, specifically Mr. Cintron (720 ILCS
5/24-1.2(a)(2) (West 2010)).
2 At trial, Roberto testified against Mr. Torres. Roberto
acknowledged that he had also played a role in this shooting
and told the jury that he had pled guilty in juvenile court
to attempted first degree murder (id. § 8-4(a))
and to aggravated battery (id. § 12-3.05(a)).
This testimony was not true. Roberto pled guilty only to
aggravated battery-not to attempted first degree murder. The
testimony went uncorrected by the State, despite defense
counsel expressing concern that the jury might infer from
that plea that Mr. Torres was also guilty of attempted
murder, thereby undermining his only defense, which was that
he never had the specific intent to kill someone, a necessary
element for an attempted murder conviction.
3 Mr. Torres appeals his convictions on three bases: (1) the
State's use of and failure to correct Roberto's false
testimony deprived him of his right to due process of law;
(2) his trial counsel was ineffective; and (3) his conviction
for aggravated discharge of a firearm in the direction of a
vehicle he knew or reasonably should have known was occupied
by a person violated the one-act, one-crime rule.
4 For the following reasons, we reverse Mr. Torres's
conviction for attempted first degree murder and remand for a
new trial on that charge. We find that Roberto's false
testimony that he pled guilty to attempted first degree
murder was not harmless error in this case. This reversal
moots Mr. Torres's argument under the one-act, one-crime
doctrine. Finally, as to the remaining charges against him,
we reject Mr. Torres's claim that he received ineffective
assistance of counsel.
5 I. BACKGROUND
6 In October 2011, Linda Torres-Jurado placed a telephone
call to her 16-year-old son, Roberto, and told him to find
Miguel Torres and also to locate a gun so that the two of
them could scare Ruben Lopez. Linda had hired Mr. Lopez to
drive a truck full of heroin from Mexico to Chicago, but Mr.
Lopez had not made the delivery or contacted Linda. Linda was
receiving threats against herself and her family in Mexico
and was desperate to find Mr. Lopez and recover the lost
7 Roberto did as he was told; on October 2, 2011, he secured
a handgun from a local gang member, and then he and Mr.
Torres walked to Linda's house. Along the walk, they
picked up Roberto's 15-year-old girlfriend, Jesenia
Carmona. When these three arrived at Linda's house,
everyone got into her car, and they drove off in search of
8 Mr. Lopez turned out to be an informant who was actively
cooperating with local and federal law enforcement in an
investigation directed at Linda's drug trafficking
activities. Shortly after the shooting in this case, Linda
and her son were detained by agents of the United States Drug
Enforcement Administration, and soon after that, Mr. Torres
was arrested by Cicero police officers.
9 While in custody, Mr. Torres waived his Miranda
rights (see Miranda v. Arizona, 384 U.S. 436 (1966))
and gave a detailed written statement, confessing to having
shot at the driver of the car in order to scare him, after
Linda had incorrectly identified the driver to him as being
Ruben Lopez's brother, Beto. Mr. Torres said in his
statement that Linda had told him to scare Beto so that Beto
would tell him where Ruben was. As it turned out, the person
that Mr. Torres shot was not Beto, but Mr. Lopez's
neighbor, Jose Salgado, who had no connection to Ruben Lopez
or to Linda's missing drugs. Angel Cintron was in the car
with Mr. Salgado and took the wheel after the shots were
fired to drive Mr. Salgado to the hospital.
10 Mr. Torres, who was 20 years old at the time, was charged
with (1) attempted first degree murder, (2) personally
discharging a firearm during the commission of attempted
first degree murder, (3) aggravated battery, (4) two counts
of aggravated discharge of a firearm in the direction of
another person, and (5) two counts of aggravated discharge of
a firearm in the direction of a vehicle that Mr. Torres knew
or reasonably should have known to be occupied by a person.
11 Roberto, who was 16 years old, was charged as a juvenile
with 10 offenses, including aggravated battery and attempted
first degree murder. On June 20, 2013, Roberto pled guilty to
a single offense: aggravated battery. The State dismissed the
remaining nine charges against him, and Roberto received a
sentence of five years' probation.
12 On October 28, 2014, Mr. Torres's case proceeded to a
jury trial. During a single day of testimony, the State
called five witnesses: Jose Salgado, Angel Cintron, Roberto
Vargas, Jesenia Carmona, and Detective David Leuzzi. Mr.
Torres presented no witnesses.
13 Jose Salgado testified that, in October 2011, he lived
next door to Ruben Lopez. They drove similar cars: Mr. Lopez
drove a white Crown Victoria and Mr. Salgado drove a white
Lincoln Town Car. On October 2, 2011, at around 7:30 p.m.,
Mr. Salgado and his friend, Angel Cintron, decided to get
into Mr. Salgado's car to go get something to eat. Mr.
Salgado drove, and Mr. Cintron sat in the front passenger
seat. They backed out of a parking spot and started to drive
down the alley behind Mr. Salgado's apartment when Mr.
Torres waved them down. Mr. Salgado slowed to a stop and
rolled down his window.
14 Mr. Torres stood an arm's length away and asked,
"where you from." Mr. Salgado answered,
"Chicago." Mr. Torres repeated the question. Mr.
Salgado pointed to his apartment. Mr. Salgado then heard
gunshots and "saw the flashes" from Mr.
Torres's gun. Mr. Salgado's left arm went limp, and
he felt a "burning sensation" in his chest. He
attempted to drive to his parent's house because he
believed he was "going to die." Mr. Salgado could
not drive, so Mr. Cintron took the wheel and drove to a
hospital where Mr. Salgado was treated for two gunshot
wounds, one to his chest and one to his arm. Mr. Salgado
survived the shooting, and the bullets were removed from his
body six months later.
15 Angel Cintron gave a similar account. He testified that on
the night of October 2, 2011, he and Mr. Salgado left the
apartment to go to a Chinese buffet. He got into the
front-passenger side of Mr. Salgado's car, and they drove
down the alley behind his apartment when Mr. Torres flagged
them down. Mr. Torres approached the driver's-side door,
got close, and twice asked Mr. Salgado where he was from. Mr.
Cintron noticed another man walking near the car on the
passenger side, saw Mr. Torres and the man nod at each other,
and watched as Mr. Torres pulled a handgun from his
sweatshirt pocket and shot Mr. Salgado "two or three
times." Mr. Cintron drove Mr. Salgado to the hospital
and called the police.
16 Roberto testified that he received a call from his mother
in October 2011 and was directed to find Mr. Torres and go
look for a gun. Roberto found Mr. Torres and the two of them
got a handgun from a local member of the Gangster Disciples.
It was black and silver in color and loaded. Roberto and Mr.
Torres walked to Roberto's mother's house and picked
up Roberto's 15-year-old girlfriend, Jesenia Carmona,
along the way. When they arrived at Linda's house,
everyone got into her gold Ford Explorer, and they went to
find Mr. Lopez. Linda drove, Jesenia sat in the front seat,
and Mr. Torres and Roberto sat in the back.
17 While in the car, Linda instructed Roberto to give the
handgun to Mr. Torres. Roberto complied. She told them to
"get one of [Mr. Lopez's] family members or scare
one of his family members, shoot up the house, find one of
his family members." Roberto translated his mother's
instructions from Spanish to English for Mr. Torres, who was
not fluent in Spanish. Linda drove by Mr. Lopez's
apartment and pointed it out to Roberto and Mr. Torres. She
then purchased some beer for them to drink. Roberto
remembered doing some cocaine as well. When Jesenia got
hungry, they all ate at McDonald's.
18 When it was dark, Linda dropped off her son and Mr. Torres
in the alley behind Mr. Lopez's apartment. Roberto
testified that as he walked down the alley, he saw Mr. Torres
wave at a car. The car stopped, and Roberto saw Mr. Torres
fire the handgun two times into the driver-side window.
Roberto and Mr. Torres ran away, and Linda picked them up.
19 As they drove away from the scene, Roberto heard Mr.
Torres say, "I shot him. I shot him in the head and
chest, and I better get something for it." Linda
replied, "good," and told Mr. Torres to clean and
remove the fingerprints from the gun. Mr. Torres called
Roberto the next day, asking for money.
20 Roberto admitted that he was arrested after the shooting
and taken to the Cicero Police Department, where he waived
his Miranda rights and told the police what happened
the day of the shooting. The State then questioned Roberto
about his guilty plea in juvenile court. The State asked,
"on June 20th, 2013, in case number 11 JD 4268, you pled
guilty in Juvenile Court to attempt murder and aggravated
battery; is that correct?" Roberto answered,
"Yes." The prosecutor continued, "[a]nd you
currently are serving five years['] probation; is that
correct?" He answered, "Yes." Roberto
confirmed that this guilty plea was for his "involvement
in the shooting of Jose Salgado and into the vehicle that
Angel Cintron was seated."
21 However, Roberto did not plead guilty in juvenile
court to the offense of attempted murder. The docket sheet of
Roberto's plea in juvenile court, which Mr. Torres
provided to this court in a supplemental record, makes clear
that Roberto only pled guilty to aggravated battery and that
the charge of attempted murder and a number of other charges
were nol-prossed. The State, which had asked Roberto to
affirm that he pled guilty to attempted murder, never
corrected this false testimony.
22 Roberto's girlfriend, Jesenia Carmona, took the stand
and testified that she sat in the front seat of Linda's
car on the night of October 2, 2011, and overheard Mr. Torres
say that "he shot the dude in the head and in the
body." She also heard Mr. Torres say that the gun
23 The State called, as its last witness, Detective David
Leuzzi, who interviewed Mr. Torres following his arrest.
Detective Leuzzi testified that he read Mr. Torres his
Miranda rights and that after Mr. Torres signed and
initialed a preprinted Miranda form, he confessed to
shooting Mr. Salgado. Mr. Torres was interviewed a second
time and at a different location by Detective Leuzzi and
Assistant State's Attorney (ASA) Tom Sianis. Mr. Torres
waived his Miranda rights and gave a written
statement, which ASA Sianis typed out. Detective Leuzzi read
Mr. Torres's written confession aloud to the jury.
According to the statement, Mr. Torres told the police that
Linda had told him her family was in trouble and that he had
to shoot Ruben (Lopez) or scare Mr. Lopez's family and
then told him to shoot Mr. Salgado, whom she identified to
him as Ruben Lopez's brother, Beto, "so that he
could tell [Mr. Torres] where Ruben was at."
24 The State rested its case, and Mr. Torres moved for a
directed verdict. The motion was denied. Mr. Torres ...