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People v. Torres

Court of Appeals of Illinois, First District, Sixth Division

December 20, 2019

MIGUEL TORRES, Defendant-Appellant.

          Appeal 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 cargo.

         ¶ 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 Ruben Lopez.

         ¶ 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 "got stuck."

         ¶ 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 ...

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