People v. Melchor
| Decision Date | 28 June 2005 |
| Docket Number | No. 1-03-3036.,1-03-3036. |
| Citation | 841 N.E.2d 420 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Efren MELCHOR, Defendant-Appellant. |
| Court | Illinois Supreme Court |
Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender (Yasaman Hannah Navai, Assistant Appellate Defender, of counsel), Chicago, for Appellant.
Richard A. Devine, State's Attorney (Renee Goldfarb, Veronica Calderon, Marci Jacobs, Assistant State's Attorneys, of counsel), Chicago, for Appellee.
MODIFIED UPON DENIAL OF REHEARING
Following a jury trial, defendant Efren Melchor was found guilty of first degree murder and sentenced to 40 years' imprisonment. On appeal, defendant contends that: (1) the admission of a deceased eyewitness' testimony under the former testimony exception to the hearsay rule in section 115-10.4 of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10.4 (West 2002)) violated his confrontation rights pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (2) the admission of the deceased eyewitness' testimony was erroneous because it lacked sufficient guarantees of trustworthiness; (3) the trial court erred in admitting testimony from a police officer confirming the deceased witness' identification of defendant in a lineup in violation of section 115-12 of the Code (725 ILCS 5/115-12 (West 2002)) and in violation of Crawford; (4) the trial court denied defendant his right to present a defense by excluding testimony from his brother regarding threats made against his brother and himself; (5) the trial court erred in admitting gang evidence testimony; (6) the prosecutor engaged in misconduct in closing argument by suggesting defendant fabricated a defense and in misstating evidence regarding the lineup; (7) the trial court's 40-year sentence was excessive; and (8) the trial court failed to properly admonish defendant pursuant to Supreme Court Rule 605(a). For the reasons set forth below, we reverse defendant's conviction and vacate his sentence and remand.
On April 30, 1990, Steven Botello was shot to death at 2624 West Fullerton in Chicago. Defendant and codefendant, Ancermo Paredes, were arrested on May 6 and were identified in a lineup as being involved in the shooting. Thereafter, both were indicted on two counts of murder. After being released on bond, defendant failed to appear in court and, on October 2, his bond was forfeited and a warrant for his arrest was issued. Defendant remained a fugitive for the next 10 years. On May 15, 1991, codefendant's bench trial began. At this trial, Luis Ortiz, then 16 years old, the sole eyewitness to the shooting testified, implicating both codefendant and defendant. On May 20, codefendant was found not guilty. On September 11, 1998, Ortiz died as a result of a drug overdose. In addition, at some point, codefendant was deported to Mexico.
On October 15, 2000, defendant was again arrested. Prior to defendant's trial, the State indicated its intent to use Ortiz and codefendant's testimony from codefendant's trial because both were unavailable. Defendant filed a motion to preclude the State from using their testimony, arguing that its use would violate his confrontation rights and that the testimony, particularly Ortiz's, did not bear sufficient guarantees of trustworthiness. After a hearing, at which the State confirmed Ortiz was the sole eyewitness to the shooting, the trial court concluded that his testimony was "more probative" on the question of whether or not defendant was present at the scene of the shooting and whether he was the shooter. The court then noted that while Ortiz's testimony was given under oath at a hearing, there had been no cross-examination by defendant or anyone on his behalf, but only on behalf of codefendant. Despite this, the court concluded that Ortiz's testimony was trustworthy and there were "equivalent guarantees of trustworthiness" to admit it. However, the court denied the State's request to use codefendant's prior testimony.
Defendant's jury trial began on March 18, 2003. Julio Diaz, who was 30 years old at the time of defendant's trial, testified that on April 29, 1990, from approximately 9 p.m. to midnight, he was playing basketball in Haas Park at Fullerton and Washtenaw with Ortiz, Botello, and "Tootie." According to Diaz, the group shared a quart of beer. At approximately 11:30 p.m., the group left the park and was walking down Fullerton to get more beer. At this time, they saw four Hispanics coming in their direction on the same side of the street, none of whom Diaz recognized. Tootie said he was going to "mess with" them, to which Diaz responded there was no need for that. When the Hispanics were near Diaz's group, Tootie made a motion like he was going to hit them in the groin or stomach. According to Diaz, the Mexicans then crossed the street and started swearing at Diaz's group in Spanish. Botello said "let's fight," so Diaz's group, with the exception of Tootie, who ran away, walked across the street. Diaz further stated that the Mexicans were throwing bottles and bricks at his group, his group ran toward them, and a "free for all" fistfight began. After approximately 10 minutes, the fight broke up because Botello yelled that the law was coming. Just prior to this, Jamie Figueroa (also deceased at the time of defendant's trial) and Mario Lopez had joined the fight.
Diaz also testified that he and Figueroa hid in a viaduct for a few minutes after the fight broke up and then went to a pay phone. At this time, Ortiz and Botello were also there. The group then walked to Fullerton and California because Botello wanted to see his daughter. At this intersection, there was a Shell and Amoco gas station on either corner. Diaz walked toward the Shell station to say hello to someone he knew. Approximately 10 minutes later, Botello returned. According to Diaz, as Botello was walking toward the station, Diaz saw a two-door gray Toyota hatchback attempt to hit Botello. Diaz also saw four individuals in the car and recognized as least one of them as one of the guys his group had been fighting with earlier.1 His group then started walking eastbound on Fullerton toward "Bunkie's Tavern." Diaz saw "Flash," whom he spoke with for a few minutes, and then he went to the Goethe School playground to tell Flash's girlfriend that Flash was on Fullerton. While talking to this girl, Diaz heard two sounds like firecrackers. According to Diaz, he got on a bike and rode toward Fullerton. He saw a squad car and Botello on the ground. It was his belief that the cop had hit Botello. Diaz then rode to the Amoco station, got two hotdogs, and ate one of them. He got back on the bike and rode eastbound on Fullerton. Botello was still on the street and, at this time, Diaz found out that Botello had been shot.
Diaz further testified that the guy he recognized in the car whom he had been fighting with was codefendant. Defense counsel then requested a sidebar, at which time he asked to inquire of Diaz about his gang affiliation. The court indicated that counsel could ask Diaz only if he was a gang member and, if so, which one. The State, upon resuming questioning of Diaz, presumably in anticipation of defense counsel's questions, asked him whether he was in a gang, to which he responded in the affirmative, stating he was a member of the Latin Lovers. Diaz further stated that Ortiz, Botello, Figueroa, Lopez, and Tootie were also in the same gang. Diaz also stated that he knew the four Mexicans were not in a gang because "you could tell," and that the fight did not start as a result of gang rivalry, but because Botello opened his mouth.
On cross-examination, Diaz testified that he was fighting with defendant. He then said he was fighting with the individual shown in a photograph (codefendant), who was the individual he identified in a lineup. Diaz then again stated he had fought with defendant and, upon viewing him in court, stated defendant looked different now.2 Diaz then admitted that he never observed Botello's shooter.
Christopher Donnelly, the assistant State's Attorney who was responsible for trying codefendant in 1991, read Ortiz's testimony from codefendant's trial. Ortiz testified that he had been friends with Botello and Diaz for 10 years. On April 29, 1990, Ortiz was with Botello, Diaz, and Tootie at Harris Park, located at Fullerton and Fairfield, playing basketball.3 Ortiz's testimony regarding the fight and attempted hit-and-run was basically consistent with Diaz's testimony. Ortiz, too, stated there were four individuals in the car and that he saw the faces of two individuals in the back seat. Ortiz identified codefendant as one of the individuals he saw and as one of the individuals he had seen earlier that night in the fight. He further stated that he saw the shooter (however, he did not identify who this was at codefendant's trial), first stating the shooter was in the driver's side rear seat and then stating he was in the front passenger seat.
Ortiz and his group then walked eastbound down Fullerton. Ortiz first said the group was going to a park and then said, "No," they were "just gonna walk around." According to Ortiz, when the group was in front of "Bonkey's Tavern," he saw Flash, Wilfredo Hernandez, and Shorty, whom he spoke with. Ortiz stated that Diaz left on a bike to go to Gaither Park. Botello also rode off on a bike he got from Shorty because he had left his wallet at the park, heading westbound on Fullerton toward California. Ortiz observed Botello looking for his wallet, when a little gray car pulled in the parking lot by the park. Ortiz first stated he did not recognize the car and then stated he did — it was the same car that tried to run Botello over. According to...
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