People v. Bahena

Decision Date31 March 2020
Docket NumberNo. 1-18-0197,1-18-0197
Citation170 N.E.3d 1014,446 Ill.Dec. 488,2020 IL App (1st) 180197
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sergio BAHENA, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Damon M. Cheronis and Ryan J. Levitt, of Law Office of Damon M. Cheronis, of Chicago, and Alfredo Acosta, of Acosta Law Group, of Maywood, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant Sergio Bahena, age 20, was convicted of the attempted first degree murder of Ruben Saldivar on March 9, 2013. On January 2, 2018, defendant was sentenced to 31 years with the Illinois Department of Corrections (IDOC).

¶ 2 On appeal, defendant claims that the trial court erred by denying his pretrial motions (1) to suppress a photo array and a physical lineup as unduly suggestive and (2) to quash his arrest and suppress evidence because he was arrested based on an investigative alert and without a warrant.

¶ 3 For the following reasons, we affirm.

¶ 4 BACKGROUND

¶ 5 The State's evidence at trial established that, on March 9, 2013, at 10:15 p.m., the victim drove to a liquor store in a van with Jaime Cruz and another man. While Cruz was in the store purchasing liquor, the shooter walked up to the front passenger side of the van and fired four or five shots at the victim, who was sitting in the driver's seat. Although shot, the victim managed to drive away. Later, the victim was taken to a hospital, and eventually two bullets were removed from his body, while one bullet remains near his spine. At the hospital, he spoke to detectives and provided a description of the shooter as a Latino, dark skinned, between 290 and 300 pounds, and six feet, one or two inches tall. Defendant is five feet, seven inches tall and 210 pounds.

¶ 6 Detective Terry Teahan was assigned to the case, and he created a photo array with six photos, but the victim was unable to identify the shooter from this array. Defendant's photo was not in this first photo array, which the victim viewed on March 27, 2013.

¶ 7 The police obtained a surveillance video from the liquor store that depicted the area in front of the liquor store at the time of the shooting. In the video, the liquor store is on the left, the sidewalk is in the center, and the victim's van is on the right, with the front-passenger side next to the sidewalk. The video depicts the shooter walking on the sidewalk, with his back to the camera, and stopping and facing the front passenger side of the van. As a result of the lighting, it is difficult to discern the gun or the shooting itself, although it is possible to discern flashes. The video then shows the van driving away and the shooter turning and running away. When the shooter turns, he is facing in the direction of the camera. From this video, Detective Teahan obtained a still photo of the shooter, which the detective used to create a criminal alert bulletin.

¶ 8 Sergeant Juan Perez recognized defendant from the bulletin, based on his prior contacts with defendant, and informed Detective Teahan on October 30, 2013. Detective Teahan used this information to obtain a file photo of defendant and create a second photo array with five photos. On November 4, 2013, eight months after the shooting, the victim identified defendant from the second photo array as the shooter. Based on this identification, Detective Teahan prepared an investigative alert.

¶ 9 After learning of the investigative alert, Sergeant Perez and his partner proceeded to defendant's home at 5 p.m. on November 5, 2013, knocked on the front door, and asked to speak with defendant. When defendant came to the door, Sergeant Perez asked him to step outside to the porch, and the sergeant placed defendant in custody. After his arrest, defendant made several oral statements on November 5, 2013, to the police in which he denied being the shooter. Detective Teahan showed defendant a still photo of the shooter from the video, which was taken immediately after the shooter shot into the van and was cut to omit the van and the liquor store. Detective Teahan told defendant that the photo was taken in the area of the shooting, and defendant replied: "okay, that's me, that's me in the picture, but that's just me in the area. I'm not the shooter."

¶ 10 On November 5, 2013, six hours after defendant's arrest, a physical lineup was conducted, and the victim identified defendant as the shooter.

¶ 11 On November 6, 2013, defendant admitted to being the shooter, his oral statement was reduced to a typewritten statement by an assistant state's attorney, and defendant signed it. Defendant does not allege that this statement was involuntary.

¶ 12 In the typed statement, defendant states that, on the night of March 9, 2013, he was a passenger in a vehicle with three friends, whom he declined to identify, but who were all "Maniac Latin Disciples or MLD's." As they were driving, they observed the victim's van parked in front of the liquor store, and one of defendant's friends stated that the van belonged to a member of the Saints, who were "in a fight" with the MLDs. The driver of defendant's vehicle stopped the vehicle; "one of the guys" told defendant that he "needed to go shoot up the Saints"; and "one of the guys" handed him a black, semiautomatic handgun. Defendant exited the vehicle, walked up to the van, and observed a person in the back of the van and another in the driver's seat. While standing in front of the front passenger door, defendant fired four to six shots into the van, at the driver. When defendant returned to his friend's vehicle, he handed the gun back to the person who had given it to him, and the driver drove away. Defendant stated that he did not know the van's driver whom he shot and that he had not observed the van or the driver prior to the night of the shooting.

¶ 13 Prior to trial, defendant filed two suppression motions that are the subject of this appeal. Defendant moved to quash his arrest and suppress evidence obtained as the fruit of the arrest, on the ground that the police arrested him based solely on an investigative alert, without an arrest or search warrant. Defendant also moved to suppress the second photo array and the lineup as unduly suggestive. After an evidentiary hearing, the trial court denied both motions, and the case proceeded to a bench trial.

¶ 14 At the bench trial, the State's witnesses testified substantially to the facts already summarized above. Defendant called Dr. Geoffrey Loftus, a psychologist whom the parties stipulated was an expert in "the field of memory and eyewitness identification," who testified regarding the dangers of relying on eyewitness identification. Defendant's brother, Alberto Bahena, age 21, testified that defendant was right-handed. The victim had testified on direct examination that he did not know in what hand the shooter held the gun but then admitted on cross-examination that he had previously told the police that the shooter held the gun in his left hand.

¶ 15 The parties stipulated that, if Officer Raul Rosales was called to testify, he would testify that, on March 9, 2013, Jaime Cruz told him that the shooter was a "a heavyset" Latino who approached the van from the passenger's side and shouted " ‘what's up motherf* * *’ " before firing five or six shots into the van. Officer Ludwig,1 if called to testify, would testify that, on March 9, 2013, he spoke with the victim at the hospital and that the victim told him that the shooter walked toward the van "holding a handgun in his left hand"; that the shooter stared at him and then fired three times; that the shooter walked up to the passenger's side door and fired two times; that he (the victim) tried to drive away but the van was in neutral; that he was able to put the vehicle into drive and drive away; that, as he was driving away, he heard two more shots; and that the shooter was "a male Hispanic, 30 to 32 years old, 290 to 300 pounds, 6'-1 to 6'-2 feet tall, wearing a black T-shirt, black jeans, and a goatee."

¶ 16 After listening to the evidence and the arguments of counsel, the trial court found defendant guilty of aggravated battery, aggravated discharge of a firearm, and attempted first degree murder including the personal discharge of a firearm. However, the trial court found that the State had failed to prove that the victim was permanently disfigured or disabled. In finding defendant guilty, the trial court stated that it relied on "the clear evidence," including the victim's identification and testimony, which were corroborated by the surveillance video; defendant's identification of himself in a still photo taken from a video of "the actual shooting"; and defendant's uncoerced statement.

¶ 17 In his posttrial motion, defendant raised, among other things, a claim that the trial court erred by denying his pretrial motion to suppress the photo array and lineup. Defendant did not argue, in either his October 26, 2017, posttrial motion or during the January 2, 2018, argument on the posttrial motion, that the trial court erred by denying his pretrial motion to quash arrest due to lack of a warrant. On January 2, 2018, the trial court denied the posttrial motion and merged the other counts into the attempted murder court. The court observed that, for attempted murder, the sentencing range was 6 to 30 years plus a 25-year firearm enhancement. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 31 years in IDOC, which the court observed was "the minimum sentence" available.

¶ 18 On January 11, 2018, defendant filed a notice of appeal, and this timely appeal followed.

¶ 19 ANALYSIS
¶ 20 I. Standard of Review

¶ 21 On appeal, defendant argues that the trial court...

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    • United States
    • United States Appellate Court of Illinois
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    ...Mason's dissent in Bass . See People v. Simmons , 2020 IL App (1st) 170650, ¶¶ 62-64, 447 Ill.Dec. 408, 174 N.E.3d 99 ; People v. Bahena , 2020 IL App (1st) 180197, ¶¶ 59-64, 446 Ill.Dec. 448, 170 N.E.3d 1014 ; People v. Thornton , 2020 IL App (1st) 170753, ¶¶ 45-50, 446 Ill.Dec. 297, 170 N......
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    ...¶ 47 Since a reviewing court may affirm a trial court's ruling on a motion to suppress on any basis found in the record ( People v. Bahena , 2020 IL App (1st) 180197, ¶ 25, 446 Ill.Dec. 488, 170 N.E.3d 1014 ), it does not matter whether the emergency aid exception is a subset of the communi......
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    ...However, the State does not argue forfeiture in its brief. Thus, the State has forfeited any claim of forfeiture. See People v. Bahena , 2020 IL App (1st) 180197, ¶ 29, 446 Ill.Dec. 488, 170 N.E.3d 1014 (the State may forfeit a claim of forfeiture by failing to raise it). Moreover, "forfeit......
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