People v. Loera

• Decision Date: 30 August 1993
• Docket Number: No. 2-91-0949,2-91-0949
• Parties: , 189 Ill.Dec. 251 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose A. LOERA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1300

619 N.E.2d 1300

250 Ill.App.3d 31, 189 Ill.Dec. 251

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose A. LOERA, Defendant-Appellant.

No. 2-91-0949.

Appellate Court of Illinois,

Second District.

Aug. 30, 1993.

G. Joseph Weller, Deputy Defender, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Elgin, Steven A. Greenberg (argued), Steven A. Greenberg Ltd., Chicago, for Jose Angel Loera.

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

Presiding Justice INGLIS delivered the opinion of the court:

Defendant, Jose Angel Loera, was 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) (now codified, as amended, at 720 ILCS 5/9-1(a)(1) (West 1992))), two counts of attempt (murder) (Ill.Rev.Stat.1989, ch. 38, pars. 8-4(a), 9-1(a)(1) (now codified, as amended, at 720 ILCS 5/8-4(a), 720 ILCS 5/9-1(a)(1) (West 1992))), and two counts of armed violence (Ill.Rev.Stat.1989, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))). Defendant was sentenced to 50 years' imprisonment on the murder count and a concurrent term of 30 years' imprisonment on the attempt (murder) counts. The armed violence counts were held to merge with the attempt (murder) counts. Defendant filed a timely appeal.

On appeal, defendant argues that (1) his trial counsel labored under a conflict of interest, prejudicing defendant or, alternatively, denying him the effective assistance of counsel; (2) the trial court should have severed his trial from that of his codefendants; (3) he was not proved guilty beyond a reasonable doubt; (4) the attempt (murder) instruction given to the jury was erroneous and prejudicial; (5) he was denied the right to testify in his own behalf at trial; (6) the trial court should not have allowed a police officer to testify as an expert on gangs; and (7) he was denied the effective assistance of counsel both prior to trial and during his trial.

Defendant was tried jointly with Jorge Carvajal and Brian C. Torres, who were each convicted of charges identical to defendant's charges. We affirmed Carvajal's and Torres' convictions in People v. Carvajal (1993), 241 Ill.App.3d 886, 182 Ill.Dec. 105, 609 N.E.2d 408.

On June 3, 1990, at about 10 p.m. a shooting occurred on Beach Street in the City of Aurora. A large group of Latin Kings had gathered for a party and were milling about in the street. Three or four gunmen who were allegedly members of the Insane Deuces, a gang which was then at "war" with the Latin Kings, fired into the crowd using automatic and/or semiautomatic weapons. One person in the crowd died and two others were wounded.

A number of Latin Kings and their acquaintances testified for the State concerning the shooting. The witnesses generally agreed that after a confrontation between the people in the street and a number of people in a passing car, two or three gunmen appeared at the intersection of Beach and Liberty Streets and an additional gunman came out from between two houses on Beach Street. The gunmen opened fire on the crowd.

Alex Ramos, a Latin King, testified that defendant, Torres and a third person were the gunmen at the intersection and that Carvajal was the person who fired from between the houses. Ramos identified defendant, Carvajal and Torres as belonging to the Insane Deuces.

Michael Waters, another Latin King, testified that Torres was one of the men who fired from the intersection and that Carvajal was the person between the houses on Beach Street. He had told police on the night of the shooting that he could identify two of the shooters as Angel Torres and Robert Saltijeral, who was not a gang member, testified that seconds before the shooting started he saw defendant, Torres and a third person, Oscar Salgado, wearing dark clothing and walking toward the intersection of Beach and Liberty Streets. As he ran during the shooting, Saltijeral saw those three individuals standing in the intersection where the shooting was coming from. He did not, however, see defendant or the other two men firing a gun.

[189 Ill.Dec. 255] Angel Gonzalez. However, on October 23, 1990, Waters apparently told a prosecutor that he did not actually see Gonzalez at the scene, but had told police on the night of the shooting that Gonzalez was a gunman because he heard Alex Ramos say that "Ucla" was one of the shooters. Waters thought at that time that "Ucla" was Gonzalez' nickname. In fact, "Ucla" is defendant's nickname. Waters also testified at trial regarding his misidentification of Gonzalez and the mix-up with regard to "Ucla's" identity.

Al Tiegelmann, an Aurora police officer, testified that he interviewed defendant and that defendant 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 graffiti during a search of the house in which defendant lived with his parents and siblings. A firearms expert subsequently testified that nine spent cartridge casings recovered from the shooting scene were fired from one of the guns found at defendant's house.

Torres and Carvajal offered the testimony of various friends and family members. 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. Defendant's family members testified that defendant was at home from approximately 8:30 p.m. on June 3 until 10:30 p.m., when he was arrested.

CONFLICT OF INTEREST

Defendant argues that his trial counsel worked under a conflict of interest because, after his trial counsel agreed to represent defendant but before defendant's trial, his trial counsel also agreed to represent Angel Gonzalez on unrelated charges. Angel Gonzalez was the individual who was misidentified as one of the gunmen by Michael Waters after Waters heard Alex Ramos say that one of the shooters was "Ucla." Defendant asserts that a per se conflict existed, resulting in presumed prejudice to defendant and requiring automatic reversal.

According to our supreme court, a per se conflict exists when "certain facts about a defense attorney's status * * * engender, by themselves, a disabling conflict." (Emphasis in original.) (People v. Spreitzer (1988), 123 Ill.2d 1, 14, 121 Ill.Dec. 224, 525 N.E.2d 30.) The court noted that per se conflict cases had been limited to cases in which defense counsel had a prior or contemporaneous association with either the prosecution or the victim. (Spreitzer, 123 Ill.2d at 14, 121 Ill.Dec. 224, 525 N.E.2d 30.) Absent a waiver of the conflict by the defendant, treating these kind of conflicts as per se prejudicial is warranted because, in these types of cases, the defense attorney has a tie to some person or entity that would benefit from a verdict unfavorable to the defendant. (Spreitzer, 123 Ill.2d at 16, 121 Ill.Dec. 224, 525 N.E.2d 30.) Per se conflicts present problems of possible subliminal effects on defense counsel's conduct and the likelihood of later charges against the attorney of less than faithful representation. Spreitzer, 123 Ill.2d at 16-17, 121 Ill.Dec. 224, 525 N.E.2d 30.

Here, trial counsel's later representation of Angel Gonzalez did not give rise to a per se conflict of interest. Gonzalez was identified as a gunman by only one witness, Michael Waters. Further, Waters admitted, both before trial and at trial, that the identification was a mistake. Although Gonzalez apparently was listed as a suspect on a police report, he was not considered a suspect by the State's Attorney's Gonzalez was not a witness in this case, was not a victim and was not a serious suspect. He stood to gain no advantage from Loera's conviction, and defendant's claim that Gonzalez could be a prosecution target if defendant was acquitted is pure speculation, unsupported by any evidence in the record. Thus, trial counsel here did not labor under a per se conflict of interest during the trial of this case.

[189 Ill.Dec. 256] office after Waters explained his mistaken assumption. Because no other witness ever mentioned Gonzalez, it is apparent that Gonzalez' name appeared on the police report because Waters told police at the scene of the shooting that Gonzalez was one of the gunmen.

Defendant next alleges that trial counsel's failure to cross-examine Waters or Ramos about the identification of Gonzalez showed that trial counsel was influenced by his conflict of interest to the prejudice of defendant. Defendant argues that he was consequently denied the effective assistance of counsel.

Again, in Spreitzer, our supreme court explained the rules pertaining to a second type of alleged conflict, generally arising when there is joint representation of codefendants. (Spreitzer, 123 Ill.2d at 17, 121 Ill.Dec. 224, 525 N.E.2d 30.) In these cases, if the trial judge is notified of the alleged conflict early in the proceedings, he has a duty to alleviate the situation, and, if he does not, reversal is warranted even without a showing that the purported conflict affected the attorney's performance. (Spreitzer, 123 Ill.2d at 18, 121 Ill.Dec. 224, 525 N.E.2d 30.) However, if the trial judge is not timely notified of the alleged conflict, then a defendant cannot obtain reversal unless he shows that " 'an actual conflict of interest adversely affected' counsel's performance." Spreitzer, 123 Ill.2d at 18, 121 Ill.Dec. 224, 525 N.E.2d 30, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333.

The rules relating to this second type of alleged conflict do not pertain to the trial proceedings in this case. Not only was...