People v. Ochoa, 1-14-0204

• Citation: 73 N.E.3d 50,2017 IL App (1st) 140204
• Decision Date: 15 February 2017
• Docket Number: No. 1-14-0204,1-14-0204
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Daniel OCHOA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 140204

73 N.E.3d 50

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

v.Daniel OCHOA, Defendant–Appellant.

No. 1-14-0204

Appellate Court of Illinois, First District, THIRD DIVISION.

Opinion filed February 15, 2017

Michael J. Pelletier, Patricia Mysza, and S. Emily Hartman, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Joseph Alexander, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the Court, with opinion.

¶ 1 Following a jury trial, defendant Daniel Ochoa was convicted of first degree murder and aggravated discharge of a firearm in the 2002 shooting death of 15 year-old Marilu Socha. The jury also found that defendant personally discharged a firearm that proximately caused the death of the victim.¹ The trial court sentenced defendant to 45 years' incarceration for first-degree murder, 35 years' incarceration for the firearm sentence enhancement, and 10 years' incarceration for aggravated discharge of a weapon, to be served consecutively. On appeal, defendant contends the trial court erred where (1) he was denied his right to confrontation where the State elicited improper hearsay testimony from police officers, (2) it improperly allowed the State to argue that the shooting was a gang initiation, and (3) the firearm sentence enhancement is unconstitutionally vague on its face and as applied to him. For the following reasons, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 In brief, defendant was arrested two days after Socha was killed in a gang-related shooting. At that time, three other men² were being held for involvement in the shooting, two of whom were arrested after allegedly being involved in a subsequent, unrelated incident using the same distinctive vehicle that was used in Socha's murder. Defendant, who speaks only Spanish, signed a statement written in English with translation by the lead detective on the case, in which he confessed to the crime.

¶ 4 Defendant was tried in 2005 and found guilty of the first degree murder of Socha, as well as aggravated discharge of a firearm for shooting at Joe Maldonado but hitting and killing Socha. Defendant appealed, arguing in part that the trial court erred when it allowed hearsay evidence of co-defendants' statements implicating defendant. People v. Ochoa , No. 1–05–1848, 375 Ill.App.3d 1141, 348 Ill.Dec. 927, 945 N.E.2d 696 (2007) (unpublished order under Supreme Court Rule 23 ). This court reversed defendant's conviction and remanded for a new trial. People v. Ochoa , No. 1–05–1848, 375 Ill.App.3d 1141, 348 Ill.Dec. 927, 945 N.E.2d 696 (2007) (unpublished order under Supreme Court Rule 23 ). We held, in part, that the "State repeatedly elicited testimony that contained a strong inference that the co-defendants implicated defendant in their statements. This exchange went beyond mere questioning concerning the investigatory process, and included serial questions to build the inference that defendant was named by his criminal cohorts" and that the State improperly "reinforced this evidence by reminding the jury multiple times during closing arguments that, after police interviewed the co-defendants, they knew they were looking for a person with the precise characteristics of defendant." People v. Ochoa , No. 1–05–1848, 375 Ill.App.3d 1141, 348 Ill.Dec. 927, 945 N.E.2d 696 (2007) (unpublished order under Supreme Court Rule 23 ).

¶ 5 Defendant was tried again in 2013³ and found guilty of first degree murder and aggravated discharge of a firearm. It is from this conviction that defendant now appeals.

¶ 6 Prior to trial, defense counsel filed a motion in limine asking the court, in part, to exclude "inadmissible hearsay evidence inferring the co-defendants' identification of defendant." The court held a hearing during which the parties acknowledged that this type of hearsay was the reason the case was reversed in 2007 and was now on retrial. The court granted the motion in limine to prohibit evidence of the co-defendants' statements implicating defendant, saying it was sure nobody wanted to try the case a third time and that "we can walk around very carefully at the time the two witnesses, [Detective] Lopez and [Detective Garcia] are on the stand."

¶ 7 At trial, Joe Maldonado testified that on December 17, 2002, he was 18 years old and was a member of the Two–Six street gang in Chicago.⁴ Around 7:30 that evening, he was at his family's grocery store on Kostner Avenue and 26th Street. He testified that this area was controlled by the Two–Six street gang. His girlfriend, victim Socha, came into the store. They left together, walking a few blocks to Socha's friend Lilly's house in the 3000 block of South Kolin Avenue. Maldonado and Socha stood outside the house, talking for a few minutes. Maldonado's back was to the street. He heard a vehicle's brakes squealing nearby. As he turned toward the sound, he saw "flashes" coming from the back, driver's-side window of a green car and then heard six gunshots coming from the car. The driver's window of the car had a plastic bag covering it. Maldonado did not get a good look at the vehicle's occupants, but testified there were three or four individuals who appeared to be Latino men with short hair. As the green car slowly pulled away from the scene, Maldonado heard the occupants yell "King love." Maldonado explained that "King love" signified that the occupants were members of a rival street gang, the Latin Kings. Maldonado identified a photograph at trial of the distinctive green vehicle with the plastic covering the driver's side window as the vehicle used in the shooting.

¶ 8 Emergency services arrived and transferred Socha to the hospital. Maldonado stayed at the scene to talk with the police. Eventually, the police took Maldonado to the police station, where he provided a statement to the police and was held until the next day.

¶ 9 Andrew Linares, a Two–Six gang member, testified he and a friend, Juan Morales⁵ , were walking a few blocks away when they heard gunshots. As they ran toward the sound of the gunshots, a green car with plastic covering the driver's window and the rim of the passenger side rear tire missing sped by. Linares could see four or five individuals in the car and heard them yelling "King love," which he understood to mean that they were members of the Latin King street gang. Linares was familiar with both the Latin Kings and the Two–Six because they were gangs in his neighborhood. Linares continued running until he saw Maldonado holding Socha, who was bleeding from her mouth.

¶ 10 That same evening, Chicago Police Officer Esmelita Torres⁶ heard a police radio broadcast of shots fired, along with a description of the distinctive green vehicle. At approximately 9:30 p.m., Officer Torres observed a green car with plastic on the driver's-side window double-parked near 2410 South Spaulding Avenue. She radioed for backup and then approached the vehicle. Co-defendant Bentazos was sitting in the driver's seat. Bentazos got out of the car, and Officer Torres handcuffed him and placed him in her squad car. Officers then went into the three-flat at 2410 South Spaulding Avenue and, eventually, apprehended co-defendant Simon⁷ and Ricardo Argueta. Officers placed these men in a squad car.

¶ 11 Officers recovered a beer bottle, a knife, and a beer can from the vehicle. A fingerprint lifted from the knife matched Simon. Police also recovered cartridge casings from the scene of the shooting and a cartridge case from the center console of the green car. After testing, it was determined that the cartridge case recovered from the green car's console was fired from the same firearm as the cartridges found at the scene of the shooting.

¶ 12 Forensic Scientist Ellen Connolly Chapman testified as an expert in the field of trace evidence analysis that clothing from Bentazos and Simon tested positive for gunshot residue. Bentazos's and Simon's hands tested negative for gunshot residue. Defendant, who was arrested later, apparently was not tested for gunshot residue.

¶ 13 Chicago Police Detective Adrian Garcia testified that he and his partner, Detective Patrick Finucane,⁸ were assigned to investigate the shooting at approximately 8:30 p.m. on December 17, 2002. They went to the scene of the shooting and saw that it was secured with yellow crime scene tape and that there were uniformed officers present. They spoke with the officers at the scene, as well as with witnesses, including Maldonado, Linares, and Morales. While still on the scene, Detective Garcia monitored a police radio call of a "non-shooting incident" involving a green car with plastic covering the driver's side window.

¶ 14 The detectives eventually went to 2410 South Spaulding Avenue, where they saw the green vehicle along with uniformed officers detaining Bentazos, Simon, and Argueta. The car's rear tire "looked to be like a spare tire with no hubcap," which was significant because Detective Garcia had learned that the car involved in the shooting also had a rear tire with no hubcap. Detective Garcia requested that the evidence technicians process the green car. After seeing that the subjects were transferred to the police station, the Detectives proceeded to Mount Sinai Hospital to see the victim. They learned that the victim had died from the gunshot wound.

¶ 15 Subsequently, Detective Garcia went to the police station and collected articles of clothing from Bentazos, Simon, and Argueta to be tested for gunshot residue. Detective Garcia testified that, at that time, witnesses Maldonado, Linares, and Morales—as well as suspects Bentazos, Simon, and Argueta—were all at the police station. In the early morning hours of December 18, 2002, a line-up including Bentazos and Simon was conducted at the police station. Maldonado, Linares, and Morales each separately viewed the...