People v. Carvajal

• Decision Date: 26 February 1993
• Docket Number: Nos. 2-91-0454,2-91-0463,s. 2-91-0454
• Parties: , 182 Ill.Dec. 105 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jorge CARVAJAL, Defendant-Appellant. The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian C. TORRES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 408

609 N.E.2d 408

241 Ill.App.3d 886, 182 Ill.Dec. 105

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jorge CARVAJAL, Defendant-Appellant.

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian C. TORRES, Defendant-Appellant.

Nos. 2-91-0454, 2-91-0463.

Appellate Court of Illinois,

Second District.

Feb. 26, 1993.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill (argued), Office of the State Appellate Defenders, Elgin, for Jorge Carvajal.

David R. Akemann, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, Elgin, Mary Beth Burns (argued), State's Attys. Appellate Prosecutors, Elgin, for the People.

Presiding Justice INGLIS delivered the opinion of the court:

Jorge L. Carvajal and Brian C. Torres, defendants, were convicted by a jury in the circuit court of Kane County of one count of first-degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-1(a)(1)), and two counts each of attempt (murder) (Ill.Rev.Stat.1989, ch. 38, pars. 8-4, 9-1(a)(1)) and armed violence (Ill.Rev.Stat.1989, ch. 38, par. 33A-3). The armed violence convictions were subsequently vacated. Carvajal was given a 60-year term for the murder and a 30-year term for the attempt (murder) convictions, with the terms to run concurrently. Torres was sentenced to concurrent terms of 50 years for murder and 30 years for the attempt (murder) convictions. They appeal, claiming: (1) the trial court should have severed their trials from that of Angel Loera; (2) they were not proved guilty beyond a reasonable doubt of murder and attempt (murder); (3) the attempt (murder) jury instruction given at their trial was erroneous; and (4) the constructive possession jury instruction given at their trial was erroneous.

The charges in this case arose out of a shooting that occurred at about 10 p.m. on June 3, 1990, on Beach Street in Aurora, Illinois. Defendants, members of the Insane Deuces street gang, shot into a crowd of Latin Kings who had gathered for a party. One person in the crowd died and two others were wounded.

Alex Ramos testified that he was a member of the Latin Kings, which he maintained was a mere loose-knit organization without any hierarchical structure. He stated that his gang and the Insane Deuces were at "war" at the time of the shooting and at the time of trial. He identified defendants and Loera as Insane Deuces. He also stated that he was at the scene just prior to the shooting and that he saw Loera, Torres and a third person at a nearby intersection holding guns and wearing black and gold clothes. He said that Carvajal appeared between two nearby houses Patrick Allen, another Latin King, identified Carvajal as one of the shooters, but said that the gunmen wore black clothing. He also recounted the confrontation between the people in the street and those in the car from which shots were fired, but described the car's movements differently than did Ramos.

[182 Ill.Dec. 108] on Beach Street and that all four individuals then opened fire on the crowd with automatic and semiautomatic weapons. Ramos further testified that shots came from a car at the other end of the block shortly before defendants began shooting. Also according to Ramos, he had gotten into a fight with Carvajal earlier on the day of the shooting.

Michael Waters, another member of the Latin Kings, identified Carvajal and Torres as Insane Deuces and claimed that Torres was one of two shooters at the intersection. He stated that Carvajal was the gunman positioned between the houses on Beach Street. He testified that the shooters wore hooded black clothing with the hoods up. He also testified that individuals from a car had fired shots before defendants had begun shooting, but, in contrast to the other occurrence witnesses, testified that one individual had alighted from the car to fire at the crowd.

Fidel Elizondo, a former Latin King, identified Torres as one of two gunmen standing in the intersection. He stated that both shooters wore black clothing with hoods up over their heads. He also testified as to the presence of the car and gunshots from it before defendants opened fire, but described the car's movements differently than some other witnesses.

Frank Ramirez, another Latin King, testified as to the presence of the car and gunfire from the car before the shots fired by defendants. He then identified Torres as one of two gunmen in the intersection and Carvajal as being between two houses on Beach Street, but stated that he did not see Carvajal firing a weapon. He also stated that he did not see the gunmen's clothing.

Robert Saltijeral, who was not a gang member, identified Loera and Torres as being two of three persons standing in the intersection. However, he stated that he did not see anyone shooting.

Al Tiegelmann, an Aurora police officer, testified that he interviewed Loera and that Loera told him that he was with Torres and Carvajal until about 8:30 p.m. on the night of the shooting, at which time he left them and went home.

Scott Wolters, another Aurora policeman, testified that he found two pistols, some gun magazines and a plaque bearing gang grafitti during a search of the house in which Loera lived. A firearms expert subsequently testified that nine spent cartridge casings recovered from the shooting scene were fired from one of the guns found at Loera's house.

The defense offered the testimony of various friends and family members of defendants. These persons provided an alibi for Torres from about noon on the day of the shooting until the next morning, and for Carvajal from about 7 p.m. on the day of the shooting until the next morning.

The jury convicted defendants on all charges. Defendants filed a timely appeal.

SEVERANCE

First, defendants claim that they were denied a fair trial when their trial was not severed from that of Loera. They claim that Loera's statement to police that he was with defendants at about 8:30 p.m. on the night of the shooting was in direct conflict with their alibi defenses and that this prejudice was exacerbated because Loera did not testify and defendants were thus denied the opportunity to cross-examine him about the statement. Defendants also claim that the joint trial allowed the State to admit against all three defendants the gun found at Loera's house and tied to the shooting scene and that this disparity in the proof required a severance. Defendants allege that the State would not have offered the gun at a trial without Loera, but that the defense would have offered it to deflect suspicion on a third party. The State claims that neither the conflict between defendants' alibi defenses and Loera's Generally, defendants indicted together should be tried together unless they can show potential prejudice sufficient to warrant separate trials. (People v. Bean (1985), 109 Ill.2d 80, 92, 92 Ill.Dec. 538, 485 N.E.2d 349.) However, the mere anticipation of prejudice is not sufficient to obtain a severance; rather, a defendant must state how he will be injured by a joint trial. (Bean, 109 Ill.2d at 92, 92 Ill.Dec. 538, 485 N.E.2d 349.) A severance is mandatory when codefendants' defenses are so antagonistic that a joint trial would not be a fair one. (People v. Byron (1987), 116 Ill.2d 81, 92, 107 Ill.Dec. 192, 506 N.E.2d 1247.) Moreover, although "[a]ctual hostility between the two defenses is required" (Bean, 109 Ill.2d at 93, 92 Ill.Dec. 538, 485 N.E.2d 349), there is no requirement that the prejudice be reciprocal as between the defendants. (Bean, 109 Ill.2d at 95, 92 Ill.Dec. 538, 485 N.E.2d 349.) "[A]ny set of circumstances which deprives a defendant of a fair trial is sufficient to require severance." (Emphasis in original.) Bean, 109 Ill.2d at 95, 92 Ill.Dec. 538, 485 N.E.2d 349.

[182 Ill.Dec. 109] statement nor the disparity in the evidence was sufficiently acute to warrant severance.

A severance is also appropriate when the State, in a joint trial, introduces out-of-court statements of a nontestifying codefendant that implicate the defendant. (People v. Wilson (1987), 161 Ill.App.3d 995, 1000, 113 Ill.Dec. 827, 515 N.E.2d 812.) In this instance, the defendant may be denied his constitutional right to confront witnesses against him because he cannot cross-examine the codefendant. Wilson, 161 Ill.App.3d at 1000, 113 Ill.Dec. 827, 515 N.E.2d 812; see also Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

Further, a great disparity in the evidence against one codefendant may require a severance of his trial from that of another codefendant. (People v. Harris (1990), 198 Ill.App.3d 1002, 1009, 145 Ill.Dec. 91, 556 N.E.2d 709.) Defendants here claim that all three of these situations exist in the case at bar.

Before we reach the merits, it is important to note that a trial court has the discretion to grant a motion for severance. (People v. Olinger (1986), 112 Ill.2d 324, 346, 97 Ill.Dec. 772, 493 N.E.2d 579.) Thus, we review the circuit court's decision under the abuse of discretion standard. "In ruling on the motion for severance the trial judge must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings." (People v. Daugherty (1984), 102 Ill.2d 533, 541, 82 Ill.Dec. 315, 468 N.E.2d 969.) Further, a trial court has a duty throughout the trial to order a severance if sufficient prejudice appears. (Wilson, 161 Ill.App.3d at 1000, 113 Ill.Dec. 827, 515 N.E.2d 812.) Finally, an appellate court reviewing a trial court's decision on a severance motion "looks to the facts and circumstances which existed at the time [the motion] was denied [citation], although subsequent events may illustrate the prejudice which results when the motion is not granted at the earliest point." People v. Threzzy (1987), 163 Ill.App.3d 180, 183, 114 Ill.Dec. 418, 516 N.E.2d 573.

Here, we do not believe that the...