People v. Guerrero

• Decision Date: 15 September 2021
• Docket Number: 2-19-0364
• Citation: 2021 IL App (2d) 190364,194 N.E.3d 961
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edwardo GUERRERO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (2d) 190364

194 N.E.3d 961

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Edwardo GUERRERO, Defendant-Appellant.

No. 2-19-0364

Appellate Court of Illinois, Second District.

Filed September 15, 2021

James E. Chadd, Thomas A. Lilien, and Anthony J. Santella, of State Appellate Defender's Office, of Elgin, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Adam J. Rodriguez, Assistant State's Attorneys, of counsel), for the People.

JUSTICE JORGENSENdelivered the judgment of the court, with opinion.

¶ 1 A jury convicted defendant, Edwardo Guerrero, of two counts of aggravated battery ( 720 ILCS 5/12-3.05(a)(1), (c)(West 2018)).The trial court merged the counts and sentenced defendant to five years’ imprisonment.

¶ 2Defendant appeals, raising two issues.First, he contends the trial court erred when it admitted, as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963(Code)( 725 ILCS 5/115-10.1(West 2018) ), a witness's prior inconsistent statement.Second, he contends the trial court erred by admitting, under section 115-12 of the Code (id.§ 115-12), a police detective's testimony describing the witness's prior photographic identification of defendant.We agree with defendant, and, therefore, we reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 A. The Charges

¶ 5 A grand jury indicted defendant with two counts of aggravated battery, alleging that, on May 25, 2018, defendant struck Algerto Perez in the head with a rock in an alleyway on Wilson Street, a public way, in West Chicago, causing him great bodily harm.

¶ 6 B. Trial

¶ 7 Before trial, defendant moved in limine to bar the State's witnesses from referring to him by his nickname, "Monster."The court originally granted defendant's motion but later reconsidered its ruling, allowing the State's witnesses to refer to him as "Monster."Additionally, the State told the court it expected Perez to testify he did not remember anything that happened in relation to the battery.Accordingly, the State anticipated laying the required foundation and playing Perez's videotaped statement as substantive evidence under section 115-10.1 of the Code.

¶ 8 The evidence at trial showed that, around 12:51 p.m. on May 25, 2018, West Chicago police officer Blake Bertany responded to Central Du Page Hospital in relation to a dispatch for an aggravated battery.There, he met Perez, who was crying, injured, in pain, and disoriented, and he observed a large bleeding wound above Perez's left temple.He took photographs of Perez's injuries (which were later admitted into evidence and shown to the jury).Before leaving, Officer Bertany asked Perez to come to the police station after Perez's release from the hospital.Perez received eight staples in his head to close the wound and then left the hospital.He did not go to the police station.Later that day, Officer Bertany went to Perez's house on an unrelated matter and again asked Perez to come to the police station.Perez agreed to do so.At the station, Detective Greg Bowers interviewed Perez, and the interview was videotaped.

¶ 9 1.Algerto Perez

¶ 10 At trial, Perez testified he did not recall what happened on May 25, 2018, did not want to testify, and was not going to answer any questions about the specifics of what happened.He acknowledged, however, that he gave a videotaped statement to the police about the events that led to the charges against defendant.In addition, Perez acknowledged that, the Friday before trial in this case, he pleaded guilty to theft and fleeing and eluding a peace officer and admitted to violating the probation he received on an earlier manufacture-and-delivery-of-a-controlled-substance conviction.He also acknowledged he received concurrent 30-month prison sentences in exchange for his guilty pleas and was resentenced to a concurrent 30-month term on his probation violation.However, the State had not promised him anything in exchange for his testimony.

¶ 11 When shown the photographs taken by Officer Bertany at the hospital, Perez testified they accurately depicted his injuries.

¶ 12 On cross-examination, Perez testified he did not want to testify, because defendant had done nothing to him.He did not call the police on the date of the incident.Instead, the police "showed up and asked [him] some questions," and he felt compelled to cooperate and "tell them something" because of his own legal issues.Additionally, Perez acknowledged he"had a problem with drugs" on the date of the incident.

¶ 13 2.Algerto Perez's Videotaped Statement

¶ 14The court excused the jury and asked the State whether it had anything to add to its section 115-10.1 motion.The State informed the court it had met with Perez twice to go over the details of the trial and, although Perez had previously spoken at length about the details of the incident, "it was just really minutes ago before court that he informed [the State]he was going to refuse to testify."The court found Perez's testimony that he did not recall what happened on May 25, 2018, inconsistent with what was going to be depicted in the videotape and, therefore, found his videotaped statement admissible both as impeachment and as substantive evidence under section 115-10.1.

¶ 15The State published Perez's videotaped statement, which we have reviewed.Perez told Detective Bowers that he, Sergio Beltran, Kevin Alcantar, and Alexis Espinal were sitting outside the La India grocery store.Alcantar went to an apartment complex across the street, stood outside his girlfriend's car and spoke to her as she sat inside of it.Perez then saw a Chevrolet Tahoe drive through an adjacent alley and saw defendant(whom Perez referred to as "Monster") looking out one of the windows.Perez pointed out defendant to Beltran and Espinal and told them, "We better leave."A short time later, Perez saw defendant, Eduardo "Lalo" Salinas, and a third man, whom Perez knew as "Raf," approach Alcantar on foot, and Lalo hit Alcantar "probably" three times.Perez, Beltran, and Espinal ran to Alcantar's aid.Salinas and Perez squared off but did not begin fighting.Defendant swung his fist at Perez, but Perez was able to dodge it.According to Perez, defendant must have been "ready to do something" before the fight, because he pulled a baseball-sized rock out of his pocket and threw it at Perez from close range, striking Perez in the face.Perez started bleeding "a lot" and ran away.Defendant threw two additional baseball-sized rocks, but neither struck Perez.Perez then heard defendant screaming to Salinas and Raf, "Let's go.Let's go.Let's go."(At trial, Perez was not asked to identity defendant in open court.)

¶ 16 During the videotaped interview, Perez recalled speaking with Officer Bertany at the hospital.He recalled he was with Beltran at La India but had difficulty recalling who else he was with.When reminded he was with "Kevin,"he provided Kevin's last name.Additionally, he recalled some details of what defendant, Salinas, and Raf were wearing: defendant wore a black T-shirt and baggy dark-blue shorts, Salinas wore a gray T-shirt across his face, and Raf wore skinny jeans and a "hoodie."(Later in the interview, however, he stated he could no longer remember what Raf wore.)The recording of the interview also shows that Detective Bowers drew a map of the area, and Perez indicated on the map where the altercation took place.

¶ 17 3.Sergio Beltran

¶ 18The State also presented the testimony of Beltran, who told the State just before his testimony that he was going to testify that "he didn't see anything."The State did not inform the court, like it had with respect to Perez, that it intended to introduce a statement Beltran made to Detective Bowers and Detective Daniel Herbert on May 29, 2018, as substantive evidence under section 115-10.1 of the Code.

¶ 19 Beltran testified that, on May 25, 2018, he was outside La India with Perez, Espinal, and Alcantar.He testified he did not see anything that day and "[did not] know what [the State] want[ed him] to testify about."The State attempted to elicit details regarding the incident, and the following colloquy ensued between the State and Beltran:

"Q.You met with police officers and discussed this incident, correct?

A.Yeah.

Q.And you also met with my partner and I and discussed this, correct?

A.Yes.

Q.You talked to my partner *** several times on the phone.

A.Yes.

Q.Okay.And you spoke with us today before court?

A.Yeah.

Q.And you told us that you were going to testify in court that you didn't see anything, correct?

A.Yeah.

Q.Well, let me ask you this, you did—as you sit here right now, you're saying you didn't see anything that day, correct?

A.Yeah.

Q.Back on [May] 29th, 2018, which was a few days after the 25th when you were hanging out at La India, did you speak to Detective Bowers and Detective Herbert from the West Chicago Police Department?

A.Yeah.

* * *

Q.And [the detectives] came to your house, correct?

A.Yeah.

Q.And you lived in West Chicago at that time?

A.Yep.

Q.Okay.They asked you questions about the incident that happened with [Perez], correct?

A.Yeah.

Q.And you gave them answers and sort of had a conversation, correct?

A.I just—I just gave them like—I just told them that I was there, but I had told them that I didn't see nothing too.

* * *

Q.And at some point [the detectives] showed you photos of two individuals, correct?

A.Yeah.

Q.And one of them was the defendant?

A.Yeah.

Q. *** Did you know the defendant's real name before this court case?

A.No.

Q.How did you know him by?What name did you know him by?

A.Monster.

Q.And do you see Monster in the courtroom today?

A.Yeah.

Q.Can you point to him and identify an article of clothing he's wearing[?]

A.A black suit.

Q.Can you please point in the direction that he's sitting[?]

A.That way.

[ASSISTANT STATE'S ATTORNEY (ASA)]: Judge—

[BELTRAN:] I mean, I think that's him.I don't know, I think.

[ASA]: Judge, may the record

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