People v. Boyd, 041621 ILCA1, 1-18-2111
| Opinion Judge | CONNORS JUSTICE. |
| Party Name | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GENE BOYD, Defendant-Appellant. |
| Judge Panel | CONNORS JUSTICE delivered the judgment of the court. Presiding Justice Mikva and Justice Harris concurred in the judgment. |
| Case Date | April 16, 2021 |
| Court | United States Appellate Court of Illinois, First District |
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 17 CR 3156, Honorable Steven J. Goebel, Judge, presiding.
CONNORS JUSTICE delivered the judgment of the court. Presiding Justice Mikva and Justice Harris concurred in the judgment.
ORDER
CONNORS JUSTICE.
¶ 1 Held: Defendant's conviction for aggravated discharge of a firearm is affirmed where the victim's identification of defendant as the gunman was reliable.
¶ 2 Following a bench trial, defendant Gene Boyd was convicted of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(1) (West 2016)) and sentenced to eight years' imprisonment. On appeal, defendant contends the State failed to prove him guilty beyond a reasonable doubt because neither the victim's unreliable identification of defendant nor photographs of the offender taken by the victim during the offense established defendant was the offender. We affirm.
¶ 3 Defendant was charged with three counts of attempted first degree murder, two counts of aggravated unlawful use of a weapon (AUUW), and one count each of aggravated discharge of a firearm and unlawful use or possession of a weapon by a felon (UUWF).
¶ 4 At trial, Marcos Acevedo-Bartolo testified through an interpreter that on January 28, 2017, he lived in a one-story house on Appletree Street in Hanover Park with his wife, two children, and cousin. A renter lived in his basement. About 1 a.m., Acevedo-Bartolo was in bed with his wife when he heard someone knocking on the front door. He went to the front door and told his wife, Dionisia Ronquillo, to stay in the hallway. The outside porch light next to the door was on. Acevedo-Bartolo looked out the window next to the door and observed an African American man standing outside. When asked by the prosecutor to describe the man, Acevedo-Bartolo testified" [t]he one that is sitting there" and pointed at defendant, identifying him in court. On the night of the offense, defendant was wearing a red shirt with a red hoodie that had an "Indians, like American football" logo. The hoodie covered defendant's head and top portion of his face. Acevedo-Bartolo could see defendant's face from his eyebrows down, including his eyes. Acevedo-Bartolo was "face-to-face" with defendant "[l]ess than a foot" apart with only the window separating their faces. Defendant was banging on the door and yelling. Acevedo-Bartolo did not understand what defendant said because he does not understand English. Defendant continued banging on the door for about two minutes. Defendant then walked to a black car parked across the street from Acevedo-Bartolo's house. Acevedo-Bartolo observed a "white girl with blond hair" sitting on the passenger's side of the vehicle. Defendant drove away in the black car. Acevedo-Bartolo and his wife went back to bed.
¶ 5 About five minutes later, defendant returned and began banging on the door even harder. Acevedo-Bartolo returned to the front door holding his phone in his hand with his camera ready. He again told his wife to stay in the hallway. Defendant was "trying to really work on the knob" attempting to open the door. Acevedo-Bartolo held his phone next to the window and took a picture of defendant. Defendant returned to the black vehicle and drove away. Acevedo-Bartolo again observed the blond girl inside the vehicle. Acevedo-Bartolo and his wife returned to bed. They did not call the police at this time because they had never had any problems with anyone. In court, Acevedo-Bartolo identified a photograph of his cell phone displaying the picture he took of the offender and testified," [t]hat is the black guy that is sitting there."
¶ 6 Acevedo-Bartolo testified that about five minutes later, "he came back and was banging even harder." The prosecutor asked who he was referring to by "he." Acevedo-Bartolo replied," [t]he black guy that is there," and confirmed he meant defendant. Defendant was banging on the front window. Acevedo-Bartolo stood in front of the window and looked outside. He was less than one foot from defendant. Acevedo-Bartolo took another picture of the offender with his cell phone. In court, Acevedo-Bartolo identified a photograph as the picture he took of defendant the third time defendant came to his house. Acevedo-Bartolo testified that during this third occurrence, defendant held a small revolver in his right hand pointed at the window. Defendant pointed the gun at Acevedo-Bartolo's head. Acevedo-Bartolo heard defendant cock the hammer of the gun and heard the gun click. The gun did not fire. Acevedo-Bartolo moved behind the front door. His wife turned on the kitchen light. Acevedo-Bartolo yelled at her to turn it off and she did. Defendant then fired a gunshot through the window into Acevedo-Bartolo's house. The bullet struck a corner near the kitchen. Acevedo-Bartolo yelled to his wife to call 911. He remained behind the door and did not see where defendant went. The police arrived at the house and Acevedo-Bartolo told them what happened. He showed the police the pictures he took on his cell phone. Acevedo-Bartolo testified that defendant was the person he saw at his door during each of the three encounters. He also observed the same black vehicle during each occurrence. The porch light was on throughout the entire incident. Prior to this incident, Acevedo-Bartolo had never seen defendant.
¶ 7 Acevedo-Bartolo testified that when he viewed a photo array on a computer, he did not identify anyone. On February 3, 2017, he went to the Du Page County jail with Detective Daniel Cortese and met with Deputy Eric Morales, who spoke Spanish. Acevedo-Bartolo viewed a physical lineup and identified defendant as the person who shot at him. When the prosecutor asked Acevedo-Bartolo who he identified, he replied "[t]he black guy that is sitting there." A video recording of the lineup was played in court and admitted into evidence along with a transcript that translated the discussion between Acevedo-Bartolo and Morales from Spanish to English.
¶ 8 This court viewed the video of the lineup and relied on the transcript for the translation to English. The video shows Acevedo-Bartolo and Morales in a darkened room looking through a window into the adjacent room where six men wearing orange jumpsuits are standing in a line with their backs to Acevedo-Bartolo. Morales advises Acevedo-Bartolo that the offender may or may not be in the lineup, that Morales does not know the person who has been charged with the crime or his identity, and that Acevedo-Bartolo should not feel pressured to make an identification. The men in the lineup are directed to turn around and face the glass. Acevedo-Bartolo states," [i]s number 6," which is defendant. The men are directed to turn to their right. Morales asks," [s]till?" Acevedo-Bartolo replies, "yes, yes is number 6." The men are directed to turn to their left. Morales asks, "[i]s it the same?" Acevedo-Bartolo replies, "[y]es the same - same number."
¶ 9 This court also viewed the two photographs of the offender Acevedo-Bartolo took with his cell phone which were admitted into evidence. The photograph taken during the second encounter depicts a close-up partial view of an African American man. The man is wearing a red, black, and white hoodie that appears to have the Chicago Blackhawks Indian logo on the front of it. A portion of the front of the man's neck and the lower left quarter of the man's face were the only features captured. The visible features include half of the man's lips, a portion of his short beard and moustache, and red writing on his neck that appears to be a tattoo. The photograph taken during the third encounter depicts an African American man wearing the same red Blackhawks hoodie. This photo captured from the top of the man's head to his waist. The man's hood is up over the top of his head, but his entire face is visible including his forehead, eyes, eyebrows, nose, mouth, beard, moustache, and left ear. The man is holding his left arm up in front of him, bent at the elbow, with his fingers folded in, as though he were knocking on a window with his knuckles.
¶ 10 On cross-examination, Acevedo-Bartolo testified that he could see the girl inside the black vehicle because the car door was open and the light inside the vehicle was on. During the third encounter, defendant was banging on the window with his left hand. Acevedo-Bartolo heard the gun click from inside his house because defendant had the gun "pointed right to the window." Acevedo-Bartolo was standing about one inch away from the window. He did not see defendant fire the gunshot because he had moved behind the door. Acevedo-Bartolo acknowledged that the gun was not visible in the photographs he took during the offense. Around 5:30 a.m., about four hours after the incident, the police brought Acevedo-Bartolo to the police station and showed him a photo array of six men. Acevedo-Bartolo testified that he did not identify anyone in the photo array because defendant's photograph was not included. Defense counsel showed Acevedo-Bartolo the photo array in court. Acevedo-Bartolo denied that photograph number three in the photo array was a photograph of defendant, who was sitting in the courtroom. He testified, "I hadn't seen him like that on that date."
¶ 11 On redirect examination, Acevedo-Bartolo testified that he heard the gunshot within seconds after he moved behind the door. The bullet hole in the window was...
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