People v. Mercado

• Decision Date: 24 December 2009
• Docket Number: No. 1-08-0655.,1-08-0655.
• Citation: 921 N.E.2d 756,336 Ill. Dec. 900
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Angel MERCADO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

921 N.E.2d 756

336 Ill. Dec. 900

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Angel MERCADO, Defendant-Appellant.

No. 1-08-0655.

Appellate Court of Illinois, First District, Sixth Division.

December 24, 2009.

Rehearing Denied February 2, 2010.

Anita Alvarez, Cook County State's Attorney, Chicago, IL (James E. Fitzgerald, Marie Quinlivan Czech and Mary Beth Kinnerk, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Patricia Unsinn, Deputy Defender of Cook County, Chicago, IL (Brian E. Koch, Assistant Appellate Defender), for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

Following a joint jury trial, defendant Angel Mercado was found guilty of aggravated discharge of a firearm and unlawful use of a weapon by a felon while codefendant Robert Cantoral was acquitted of aggravated discharge of a firearm. Subsequently, the trial court sentenced defendant to concurrent terms of 20 years in prison for aggravated discharge of a weapon and 12 years for unlawful use of a weapon by a felon.

Defendant appeals, arguing that the trial court erred in failing to sever his trial from that of his codefendant because they presented antagonistic defenses and his attorney was ineffective for failing to ensure that defendant was tried separately from his codefendant.

Both defendant and codefendant Cantoral were charged with aggravated discharge of a firearm in relation to a July 2005 shooting. Defendant was also charged with unlawful use of a weapon by a felon. Prior to trial, defendant filed an answer asserting self-defense as an affirmative defense whereas Cantoral filed an answer asserting that the State would be unable to prove him guilty beyond a reasonable doubt. Defendant's attorney filed a motion to sever defendant's trial from Cantoral's.

At the hearing on defendant's motion, the trial court inquired how Cantoral's anticipated argument that the State could not prove him guilty beyond a reasonable doubt was antagonistic with defendant's affirmative defense of self-defense. Defendant's attorney responded that he could "only speculate" that Cantoral might testify that he had no knowledge and that defendant's actions came as a surprise and this potential testimony would conflict with defendant's testimony that Cantoral had some involvement in the incident. The trial court considered the argument, but denied the motion for severance.

The case proceeded to a jury trial at which a different trial judge presided and the following evidence was presented.

Luis Avilez, Manuel Torres, Santiago Torres and Ivan Villanueva testified that they were occupants in Avilez's car in the early morning hours of July 30, 2005. Avilez was driving, Manuel was in the front passenger seat with Santiago behind him and Villanueva behind Avilez. They were driving into downtown to Chicago to go to some nightclubs. They had just exited the expressway onto Ohio Street and were stopped at a red light when a black sport utility vehicle (SUV) pulled up next to their car.

While at the stoplight near the Rock-n-Roll McDonald's in downtown Chicago, Avilez, Manuel and Santiago testified that the driver of the SUV flashed a gang sign for the Satan Disciples. Avilez, Manuel and Santiago identified codefendant Cantoral as the driver of the SUV. Avilez denied being in a gang, but Manuel and Santiago stated that they were former Latin Kings. In response, Santiago "threw the finger" at the driver by extending his middle finger. Villanueva did not see any hand gestures.

When the light turned green, the SUV accelerated and moved in front of Avilez's car. Avilez testified that the passenger of the SUV leaned out of the window and fired several gunshots at their car. Avilez identified defendant as the shooter. Manuel heard the gunshots from the passenger side of the car and saw the flash of the gun. Santiago and Villanueva heard the gunshots, but did not see from where the shots were fired. Avilez testified that he followed the SUV until he noticed a police car at the next light. He told the officers a person in the SUV had fired shots at them. The police began to follow the SUV and Avilez continued to follow behind the police car.

Sergeant Willaim Bradley testified that he witnessed the shooting. He worked part-time as a security guard for a downtown restaurant, located at Ohio and Wabash. On the night of July 30, 2005, he was sitting in his car after leaving his job when he heard a loud noise which he believed to be a gunshot. He looked up and saw "a dark SUV with a male hanging out pointing a large caliber weapon behind him." Sergeant Bradley observed the man fire two rounds. He identified defendant as the shooter. He called 911 and proceeded to follow the SUV as it turned left onto Wabash. Sergeant Bradley noticed an unmarked squad car and he waved to the car and told the officers that the SUV had fired shots out of the car. Those officers got in front of Sergeant Bradley and eventually curbed the SUV on Ontario, near Rush Street. Sergeant Bradley requested an officer to return to Ohio Street with him to look for shell casings. One casing was recovered and inventoried.

Officers Christopher Dingle and Jose Torres testified that Sergeant Bradley flagged them down and informed them that people in the SUV were shooting. They began to follow the SUV and activated their emergency lights on the front of the car. The SUV pulled over and Cantoral and defendant were arrested. Officer Dingle searched the vehicle and found a gun inside a storage compartment in the rear passenger side of the SUV. The officers also patted down the occupants of Avilez's car and searched their car. No weapons were found in their possession or in the car. An evidence technician later recovered a bullet above the rear wheel of the SUV. A forensic scientist testified that the bullet and shell casing were fired from the gun found inside the SUV.

Close to the end of the State's case, Cantoral's attorney advised the trial court that defendant's attorney had informed him that defendant intended to testify that Cantoral had the gun in the car and he told defendant to get the gun and fire it at the people in the other car. Cantoral's attorney asked for sanctions because this was different from defendant's previous assertion that he acted in self-defense. Cantoral's attorney requested that defendant be prevented from changing his defense because this new defense was antagonistic to Cantoral's defense. Defendant's attorney responded that defendant would testify that he and Cantoral were in fear for their lives and after an interaction with Cantoral, he fired the gun in self-defense. Defense counsel admitted that he had not presented these details at the hearing on his pretrial motion for severance. The State asked that defendant be estopped from testifying that he received the gun from Cantoral while Cantoral's attorney asked for a mistrial. The trial court stated that it would be taken under advisement and would rule if defendant testified.

After the State rested, both defendants moved for a directed finding, which the trial court denied for each defendant. The trial court also ruled that defendant could not testify as to any conversation between himself and Cantoral because it was hearsay.

Defendant then testified on his own behalf. He admitted that he was on parole from a 14-year sentence for residential burglary. He stated that he had known Cantoral for about 2 ½ months because defendant was dating Cantoral's sister.

On the night of July 30, 2005, Cantoral called defendant and they made plans to go to the house of one of defendant's ex-girlfriends. He planned to introduce Cantoral to his ex-girlfriend's stepmother. They went to the house, but they "weren't feeling the mood" so they left and decided to go to the House of Blues.

Defendant testified that Cantoral drove and they got off of the expressway on Ohio Street. While they were stopped at a light near the Rock-n-Roll McDonald's, defendant noticed Cantoral "exchanging words" with the other car. Defendant testified that all of the occupants of the other car were flashing Latin King signs. When defendant started to respond with Cantoral's actions, the trial court and defendant's attorney admonished him in a sidebar not to testify about anything Cantoral said to him and anything he said to Cantoral. The trial court also noted that at that point it found that "there is nothing antagonistic about the situation thus far."

Defendant resumed his testimony. After the light changed, they continued straight and the other car got out of a left-turn lane and "jumped" behind them. Defendant then saw the passenger make motions under the dashboard. Defendant thought the passenger was going to get a gun. Defendant then crawled to the back of the SUV and "grabbed the thing" from a compartment. Defendant said the weapon was wrapped in a towel. Defendant sat back into the passenger seat and tried to calm down, but he saw the car "speeding up on his side of the truck." He did not see a gun in the other car, but he moved the slide on the gun in his possession to make sure it was loaded. He "stuck [his] right hand out the back of the truck downwards and [he] fired two rounds off at the ground." Defendant said he stuck his body out of the window to fire with his right hand. His left hand had previously been damaged by a gunshot and he was unable to hold things with it. After firing the gunshots, he thought the other car left and he put the gun back into the compartment. Defendant admitted that he used to be a Latin Disciple, but he was no longer a member at the time of the shooting.

Cantoral testified in his own defense. He denied having any prior or current gang affiliation. Cantoral denied having a gun in the car or on his person. He stated that he knew defendant because defendant was dating his sister. He picked up defendant around 1 a.m. on July 30, 2005. He denied stopping anywhere before...