People v. Calderon
| Decision Date | 06 December 2006 |
| Docket Number | No. 2-05-0532.,2-05-0532. |
| Citation | 859 N.E.2d 1163,307 Ill.Dec. 486 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gulmaro H. CALDERON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Richard C. Kelly, Kelly & Kelly, Ltd., Hebron, for Gulmaro H. Calderon.
John A. Barsanti, Kane County State's Attorney, St. Charles, Robert J. Biderman, Charles F. Mansfield, State's Attorneys Appellate Prosecutor, Springfield, for the People.
Defendant, Gulmaro H. Calderon, was convicted of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2004)) and sentenced to 10 years' imprisonment. On appeal, defendant argues that the trial court erred by: (1) granting the State's motion in limine to restrict his impeachment of the victim; (2) allowing evidence of the victim's prior photo identification of defendant even though the victim failed to identify defendant in court; (3) allowing the victim's brother to make an in-court identification of defendant when the brother had not previously made an identification and had told the police that he could not make an identification; (4) not allowing defendant to call a rebuttal witness because he was not on defendant's list of witnesses; (5) not allowing defendant to rehabilitate a witness through a prior consistent statement made to the police; (6) allowing an accountability instruction; and (7) allowing improper argument by the State. We affirm.
On January 7, 2005, defendant was charged with three counts of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)), one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2004)), and one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)). On February 22, 2005, the State nol-prossed two counts of attempted first-degree murder and the charge of aggravated discharge of a firearm. Defendant's trial began the same day.
Chad Conway testified as follows. On September 24, 2004, at about 8 p.m., he went to a party at a friend's house in Carpentersville. While there, he consumed some beers and a couple of mixed drinks. After about 1½ hours, Chad returned home to get money for cigarettes. His brother, Phillip, and his brother's girlfriend, Kim, decided to go back with him to the party. They took Chad's car. Chad sat in the driver's seat, Phillip sat in the front passenger seat, and Kim sat in the backseat. On the way to the party, Chad saw two girls walking down the street, and he thought that he recognized them from the party. He pulled over and exited the car to talk to them. Phillip and Kim remained in the car. Two young Hispanic men walked up to Chad and the girls. They asked Chad why he was talking to their "girlfriends or ex-girlfriends, or whatever they were." Chad responded, "because I can." An argument ensued between Chad and the men. When asked at trial whether he saw "any one of those two Latino gentlemen in court," Chad replied, "No, I don't."
Chad further testified that he wanted to fight the men, but they did not want to fight. Chad did not take any physical action against the men, nor did he clench his fists or lunge toward them. Chad did not have a gun or any other type of weapon with him. The men went into a house and then came back out. They got into a van, and the van pulled out of the driveway. Chad saw a weapon in "his" hands. Chad was standing in the street by his car, and he heard gunshots. The shots came from the front passenger seat of the van. He heard "them" say "`I ain't afraid of no gun,'" and a bullet hit him in the stomach. The van drove away. Phillip helped Chad to the car and drove him to the hospital. Chad remained hospitalized for two weeks and had to undergo many surgeries. While he was in the hospital, the police showed him some photographs. At the time of trial, Chad's physical condition was still suffering from the shooting. The bullet was never removed from his body because it was too close to his spine.
Chad admitted that he had a 2001 conviction of aggravated battery, for which he was sentenced to boot camp. He did not recall some specifics of the night in question, such as the time or whether he was in the street when he got shot, because of his consumption of alcohol.
Officer Timothy Bosshart provided the following testimony. He had been employed by the Carpentersville police department for 19 years, and he had been working as a detective sergeant for the previous three years. Officer Bosshart was involved in investigating the shooting at issue, and he put together a photo lineup.
At this point in the testimony, defendant objected. He argued that because Chad had failed to identify defendant as the shooter in open court, the State could not bring in testimony of a previous identification through a photo lineup. The trial court overruled defendant's objection.
Officer Bosshart then identified the photo lineup that he showed to Chad on September 30, 2004. He instructed Chad not to assume that the suspect was among the photographs and that, if he did not recognize anyone, he should say so. The photographs consisted of paper copies that were folded in half because the bottoms of the pages had the subjects' names. Officer Bosshart laid the photos out on the hospital bed. Chad immediately pointed to a photo of defendant and said, "`That looks like the guy that shot me.'" Chad signed the photograph that he identified.
Phillip Rosenbach, Chad's brother, testified as follows. On September 24, 2004, Chad came home at about 10:30 p.m. He asked Phillip and Kim to accompany him to a party, and they agreed. Chad drove, with Phillip in the passenger seat and Kim in the backseat. As they were driving west on Amarillo Drive, they saw two girls walking on the sidewalk. Chad rolled down the window on Phillip's side of the car and started talking to them and flirting. They continued walking, and Chad continued driving. After about half a block, the girls stopped. Chad got out of the car and went over to the sidewalk to talk to the girls. It was about 10:30 or 10:40 p.m. It was dark outside, but there was a streetlight. Phillip had to twist around in his seat to see what was going on.
A Hispanic man came out of a house and confronted Chad, asking who he was. One or two other Hispanic men were also present. Chad and the man argued. The man swore and, in an aggressive manner, asked Chad to leave. Chad swore back at him. The man pulled out a gun, and the other people clustered around him and told him to stop. The man shot once into the air. Over defendant's objection, Phillip identified defendant as the man who shot the gun. Chad was in the driveway when defendant shot the gun into the air. They continued to argue. Chad said, "you are not going to shoot me, you are nothing but a punk, put the gun down and let's fight." Defendant shot the gun to Chad's left. Chad continued to argue. The men and the girls got into a van, with defendant entering the front passenger door. Chad walked behind the van and continued to argue and yell. The van backed out and began to pull away, traveling west. Chad was in the middle of the street and began to walk behind the van. At some point while the van was backing out, he also went to his car's trunk. Chad called the men a bunch of "pussies" because they would not fight him. Defendant reached out of the passenger side and shot at Chad, striking him. At this point, the van was 15 to 20 feet in front of Chad's car, and Phillip had a "pretty good view" of defendant's face as the van drove past him. The illumination from a streetlight and the moonlight enabled him to identify defendant. The van then drove away. Chad dropped to the ground, and Phillip picked him up and took him to the hospital. Chad did not appear intoxicated that night, but Phillip had smelled alcohol on him.
Phillip admitted that six days after the incident, he "possibly" told a police officer that he would not be able to pick the offender out of a photo lineup because he had been in the car the entire time.
Detective Todd Shaver testified that on October 1, 2004, he took a statement from Phillip. He did not offer Phillip an opportunity to view individuals in a photo lineup. Phillip told him that he would not be able to pick the offender from a photo lineup because Phillip was in the car the entire time.
Amber Lavender provided the following testimony. She was in eleventh grade and lived on Amarillo Drive. Amber had dated defendant for four months, beginning in August 2003. On September 24, 2004, she was at her friend Stephanie's house. Stephanie lived on the same block. They decided to go to defendant's house because a friend of Stephanie's had invited them over. As they were walking, they could see defendant in front of a van, which was parked in the driveway. Defendant had driven the van on many occasions. Defendant's younger brother Fernando and defendant's friend Eric were also there. As Amber and Stephanie were walking, a car pulled up next to them and the driver started talking to Stephanie. He told Stephanie that he would give her $100 "if she told him where the parties were at." There were two other people in the car, and Amber recognized Kim from school.
Amber and Stephanie stopped on the sidewalk in front of defendant's house, and the driver parked the car a little past the house. The driver got out of the car and talked to Stephanie. Eric approached the man, and they started talking. Amber and Stephanie walked to the side door of the house. The house's side light was on, and there was also a streetlight four or five houses away from defendant's house. Amber heard someone say, "Get the strap, get the strap." "Strap" meant gun. Amber and Stephanie walked back to the sidewalk, behind the van. They saw defendant run to...
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