People v. Maldonado

• Decision Date: 30 December 1992
• Docket Number: No. 1-88-3151,1-88-3151
• Citation: 240 Ill.App.3d 470,608 N.E.2d 499
• Parties: , 181 Ill.Dec. 426 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andres MALDONADO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 499

608 N.E.2d 499

240 Ill.App.3d 470, 181 Ill.Dec. 426

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andres MALDONADO, Defendant-Appellant.

No. 1-88-3151.

Appellate Court of Illinois,

First District, Third Division.

Dec. 30, 1992.

Rehearings Denied Feb. 5 and Feb. 18, 1993.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, James E. Fitzgerald, Andrea Bonin, of counsel), for plaintiff-appellee.

Rita A. Fry, First Asst. Public Defender, Chicago (Beth I. Solomon, Vicki Rogers, of counsel), for defendant-appellant.

Presiding Justice GREIMAN delivered the opinion of the court:

Following a jury trial, defendant, Andres Maldonado, was convicted of first degree murder for the shooting death of 18-year-old Elizabeth Cooley and was sentenced to 40 years' imprisonment.

On appeal, defendant raises five issues as error: (1) the admission of testimony and argument regarding defendant's gang affiliation; (2) the admission of testimony regarding a rifle, shells, and shoulder holster found in a gym bag which also contained the gun that apparently killed Elizabeth Cooley and allowing such items to be published to the jury; (3) the refusal to give defendant's tendered instruction on involuntary manslaughter; (4) certain comments made by the State during closing arguments; and (5) the imposition of the maximum 40-year term of imprisonment.

For the reasons which follow, we affirm defendant's conviction but reduce his sentence to a 20-year term of imprisonment.

The occurrence witnesses who testified at trial recounted substantially the same sequence of events which resulted in the fatal shooting of Elizabeth Cooley. Defendant did not testify.

About 7 or 8 p.m. on the evening of December 8, 1986, five individuals were riding in a Chevy station wagon: Stanley Cherry (a back seat passenger), Allen Oliver (a back seat passenger), Elizabeth Cooley (the victim who was sleeping in the middle of the back seat), Norman Abrams (the front seat passenger), and Lamonte Haywood (the driver).

Stanley Cherry testified that as they drove down the street, they encountered Efrain Nunez standing in the street. Lamonte Haywood, the driver of the car, honked his horn and ordered Efrain to move. Efrain then hit the roof of the car with his hand. Stanley got out of the car and asked Efrain Nunez why he was hitting the car. Stanley testified that Efrain "went to hollering it's some Latin Kings or something." Allen Oliver also exited the car and joined Stanley in the argument against Efrain and two other men who, according to Stanley's testimony, "showed up from nowhere" until "the street was full of what they call Latin Kings or whatever." The two other men were later identified by Efrain Nunez as his brother Gabriel Nunez and Tony Gonzalez.

Efrain Nunez testified that the station wagon driven by Haywood almost hit him as he was crossing the street, angered, he banged his fist on the roof of the car. Then "two colored guys got out of the car" and exchanged epithets with him.

Another car then appeared at the scene, carrying three men identified as defendant, Enrique Rivera, and Felix Lopez, who joined in the altercation on Efrain's behalf. Stanley estimated that the group which gathered against him and Allen Oliver numbered about 10 and "they was all hollering Latin Kings and kill them niggers."

Enrique Rivera kicked out the window on the driver's side of the station wagon. Defendant walked up to Stanley Cherry with a pistol, shoved the gun in Stanley's face, and said "nigger, I kill you." Stanley backed up a little and defendant fired a shot toward the station wagon. Stanley and Allen began to run down the sidewalk when Stanley heard defendant say "kill them niggers." Haywood began to drive away and defendant then fired more gunshots at the station wagon. Three to seven gunshots were heard by the various occurrence witnesses. According to the witnesses' testimony, no one except defendant had a gun.

At the corner, Haywood stopped for a stoplight and Stanley and Allen entered the car. After noticing that Elizabeth was bleeding, they drove to Walther Memorial Hospital where she later died.

After the shooting, Efrain and his group (brother Gabriel, Tony Gonzalez, Felix Lopez, and defendant) went to Efrain's apartment where Efrain had a rifle and ammunition stored in a blue gym bag. Efrain gave Felix Lopez the gym bag with those items included. Also at Efrain's apartment, defendant gave his gun to Felix Lopez who in turn put it into the blue gym bag. Thereafter, the blue gym bag containing defendant's gun and Efrain's rifle and ammunition was passed from Felix to his sister Maria Lopez to Gabriel Nunez to Amelia Herrera. The police eventually recovered the blue gym bag and its contents at the residence of Amelia Herrera.

The trial court denied defendant's request for an involuntary manslaughter instruction. Defendant was found guilty of first degree murder and sentenced to 40 years in prison.

On appeal, defendant asserts that some, but not all, testimony and argument regarding the Latin Kings street gang was improperly admitted and that such evidence was irrelevant to the issues at trial and was highly prejudicial. Defendant cites four references to the Latin Kings street gang which he believes improper.

First, defendant contests a remark made by the State in its opening statement which identified defendant as a member of the Latin Kings gang.

According to the record, in recounting the events leading to the shooting, the State commented that during the initial confrontation, another car pulled up and

"[T]hree people got out of that car, a man by the name of Enrique Rivera, a man by the name of Felix Lopez and one other man. That man [referring to defendant] is known on the streets as Polocko, he's a member of the Latin Kings street gang."

Defense counsel's objection at this point was overruled.

The second gang-related reference to which defendant objects occurred during the State's direct examination of Efrain Nunez where testimony was elicited that although the witness did not know defendant personally, he knew him from "the streets" because they both belonged to the Latin Kings.

The State contends that the reference to defendant's gang affiliation in the State's opening remarks and in the direct examination of Efrain Nunez was relevant to the identification of defendant, to placing him at the scene, and to provide a motive as to why he would stop to join Efrain Nunez during the confrontation.

Gang-related evidence may be admitted if it is otherwise relevant and admissible. People v. Gonzalez (1991), 142 Ill.2d 481, 489, 154 Ill.Dec. 643, 568 N.E.2d 864. Evidence of gang membership is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Lucas (1992), 151 Ill.2d 461, ----, 177 Ill.Dec. 390, 603 N.E.2d 460; Gonzalez, 142 Ill.2d at 487-88, 154 Ill.Dec. 643, 568 N.E.2d 864.) However, even relevant evidence may be excluded where its prejudicial impact substantially outweighs its probative value. People v. Eyler (1989), 133 Ill.2d 173, 218, 139 Ill.Dec. 756, 549 N.E.2d 268.

Evidence of gang membership is also admissible to provide a motive for an otherwise inexplicable act where there is sufficient proof that such membership is related to the crime charged. (People v. Smith (1990), 141 Ill.2d 40, 58, 152 Ill.Dec. 218, 565 N.E.2d 900.) However, to be deemed competent, such evidence must, at least to a slight degree, tend to establish the existence of the motive relied upon or alleged and it must be shown that the defendant knew of those facts. People v. Easley (1992), 148 Ill.2d 281, 326, 170 Ill.Dec. 356, 592 N.E.2d 1036, quoting Smith, 141 Ill.2d at 56, 152 Ill.Dec. 218, 565 N.E.2d 900.

In the present case, we find that the identification of defendant as a member of the Latin Kings by the State in its opening statement and by Efrain Nunez in his testimony was improper.

The State failed to link defendant's status as a gang member to the offense charged. In fact, the exact opposite conclusion was established when Efrain Nunez testified that the shooting was not gang related.

Courts have consistently acknowledged that prejudice automatically attaches to the disclosure of an accused's affiliation with a street gang. Notwithstanding the prejudice, a defendant cannot insulate the jury from his gang membership if such status is relevant to the determination of the case. Gonzalez, 142 Ill.2d at 489, 154 Ill.Dec. 643, 568 N.E.2d 864, quoting People v. Rivera (1986), 145 Ill.App.3d 609, 618, 99 Ill.Dec. 353, 495 N.E.2d 1088.

To be admissible, sufficient proof must exist to show that membership is related to the crime charged, e.g., to show common design or purpose. (People v. Hairston (1970), 46 Ill.2d 348, 372, 263 N.E.2d 840.) The purpose of this requirement is to insure that the accused is not convicted merely because of his membership in an organization that is unpopular. Hairston, 46 Ill.2d at 372, 263 N.E.2d 840.

We find further support for our holding in two recent supreme court cases which concerned the murder of a superintendent at the Pontiac Correctional Center by two inmates, Roosevelt Lucas and Ike Easley. (Lucas, 151 Ill.2d 461, 177 Ill.Dec. 390, 603 N.E.2d 460; Easley, 148 Ill.2d 281, 170 Ill.Dec. 356, 592 N.E.2d 1036.) The facts provided in these two cases establish that defendant Easley first stabbed the victim and defendant Lucas then proceeded to beat the victim about his head with a piece of pipe. Both Lucas and Easley were members of the Black Gangster Disciples gang. In their separate trials, the State presented certain evidence of their affiliation with the gang to support its theory that Lucas and Easley murdered the victim in retaliation for the death of another inmate who was a member of the Black Gangster Disciples.

In Easley, ...