People v. Perez

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE HARRIS delivered the judgment of the court, with opinion.
• Citation: People v. Perez, 2018 IL App (1st) 153629, 110 N.E.3d 196 (Ill. App. 2018)
• Decision Date: 05 March 2018
• Docket Number: No. 1–15–3629,1–15–3629
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Christopher PEREZ, Defendant–Appellant.

2018 IL App (1st) 153629

110 N.E.3d 196

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

v.Christopher PEREZ, Defendant–Appellant.

No. 1–15–3629

Appellate Court of Illinois, First District, FIRST DIVISION.

March 5, 2018

Rehearing denied March 26, 2018

James E. Chadd, Patricia Mysza, and Drew A. Wallenstein, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Jon Walters, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant-appellant, Christopher Perez, was arrested by Chicago police on suspicion of first degree murder in the shooting death of Edgar Delgado. Defendant proceeded to trial where a jury convicted him of intentional first degree murder and personally discharging a firearm during the commission of the offense. Defendant filed a motion for entry of judgment of acquittal, which the trial court denied. The trial court sentenced defendant to 53 years in prison, which included the 25–year firearm enhancement.

¶ 2 Defendant raises several issues on appeal. Defendant argues (1) the State failed to prove him guilty of first degree murder beyond a reasonable doubt, (2) the State improperly impeached its own witness, (3) his 53–year sentence violates the eighth amendment to the federal constitution and the proportionate penalties clause of the Illinois Constitution, (4) this court should invoke its powers under Illinois Supreme Court Rule 615(b)(4) and reduce his sentence, (5) his mittimus should be corrected to reflect the correct amount of presentence credit, and (6) his mittimus should be corrected to reflect only one conviction for first degree murder under the one act, one crime rule.

¶ 3 After reviewing the record and relevant case law, we affirm defendant's conviction for intentional first degree murder. We affirm his 53–year sentence. We order defendant's mittimus be corrected to reflect only one conviction for intentional first degree murder and the proper amount of presentence credit.

¶ 4 JURISDICTION

¶ 5 On February 26, 2015, a jury found defendant guilty of intentional first degree murder in that he personally discharged a firearm causing the death of Delgado. On October 15, 2015, the trial court sentenced defendant to 53 years in prison. A notice of appeal was filed on the same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 6 BACKGROUND

¶ 7 Defendant-appellant, Christopher Perez, was charged with six counts of first degree murder stemming from the shooting death of Delgado, who was shot and killed on the streets of Chicago on February 18, 2012. Both defendant and the victim were 17 at the time of the murder. A jury trial was held wherein the State proceeded on two of the six murder counts. Both counts alleged that defendant discharged a firearm during the offense, making him eligible for the mandatory 25–year sentencing enhancement.

¶ 8 The State's first witness was Bernardino Mercado. Mercado testified that on February 18, 2012, he was walking near the intersection of Belmont Avenue and Monticello Avenue when his friend, David Cabrera, pulled up alongside and asked if he wanted a ride. Mercado entered Cabrera's car and the pair proceeded north on Monticello Avenue. They eventually parked on Monticello Avenue, and after being parked for about five minutes, Mercado noticed three cars. He thought they looked suspicious because the cars were driving bumper-to-bumper at about 10 to 15 miles per hour. The pair decided to follow in their vehicle. Traveling about 50 feet behind, Mercado observed the lead car turn onto Roscoe Street. He then saw the second car hit someone on a bike. The bike rider flew into the air. At this point, Cabrera again parked the car on Monticello Avenue, this time south of the intersection with Roscoe Street. Mercado observed an individual exit the second vehicle and begin chasing someone. Mercado believed the individual being chased was the bike rider but admitted he could not be sure. The chase headed south on Monticello Avenue toward Mercado and Cabrera.

¶ 9 Mercado observed the individual who had exited the second car raise his hand and fire three gunshots in the direction of the individual fleeing south. Mercado testified he saw flames come out of the pursuer's hands. As both individuals moved closer to them, Mercado was able to identify both. The person fleeing ran under a streetlight some 5 to 10 feet from Mercado, and he observed that individual to be Delgado, whom he knew from school. Mercado observed Delgado trip and fall. As Delgado was on the ground, the pursuer also came into the streetlight's illumination and Mercado observed his face as well. Mercado testified that the pursuer was the defendant, Perez, whom he knew from the neighborhood. He observed the defendant's full face for what he claimed to be 30 seconds. He observed defendant with a silver handgun approach Delgado, fire one shot, and then flee back toward the intersection of Monticello Avenue and Roscoe Street. Defendant reentered the vehicle and left the scene.

¶ 10 Delgado got up and saw the pair. Mercado opened the back door of the vehicle and told Delgado to get in. Delgado told them he had been shot. Mercado and Cabrera drove Delgado to a hospital at the corner of Addison and Central. The pair obtained a nearby paramedic, who with the assistance of another paramedic, pulled Delgado from the car and took him into the hospital. Mercado and Cabrera then left the hospital because they did not want to be involved.

¶ 11 Mercado talked with the police about the incident on March 19, 2012. During this conversation, Mercado was presented with a group of photographs from which he identified the defendant as the shooter. Mercado then met with the police again on March 21, 2012. During this meeting, the officers asked him to view a lineup of several individuals. Mercado again identified defendant as the person who shot Delgado. Mercado gave a statement to an assistant state's attorney as well. The statement mirrored the testimony he provided in court and again identified defendant as the shooter. During his testimony, Mercado was also presented with a picture of the intersection of Monticello Avenue and Roscoe Street looking south down Monticello Avenue. From that picture, Mercado identified the streetlamp where the shooting proximately took place. He also identified the bike in the photograph as the one he saw the night of the shooting.

¶ 12 On cross-examination, Mercado admitted he could not recall the colors of the cars. He admitted that he never called 9–1–1 and did not tell anyone at the hospital he had witnessed a shooting. Mercado also explained that he talked with police on February 22, 2012, though he did not remember much of the conversation. When pressed by defense counsel about why he did not identify the defendant as the shooter on February 22, Mercado admitted he "didn't know why." Mercado further conceded he talked with Hector Martinez, who was with Delgado on the night of the shooting. He asked Martinez about who was on the bike the night of the shooting, and Martinez explained that it was him on the bike not the victim. Mercado admitted he saw an individual on a bike get hit by a car and then moments later saw the victim running toward him; because of this, he had assumed the victim had been the same person riding the bike. When pressed again about why he did not identify defendant on February 22, Mercado explained that the police never asked him.

¶ 13 Martinez was the victim's cousin and was with him the night of the shooting. He admitted he was being held in contempt of court because he had failed to respond to the subpoena to testify in this case. On the night of February 18, 2012, he and the victim were walking toward the victim's father's house so that Delgado could eat and shower. Martinez rode his blue mountain bike while Delgado walked alongside of him. They were walking on Roscoe Street, and as they approached the intersection with Monticello Avenue, three cars pulled up on them. Martinez told Delgado to run, and Delgado began to run south on Monticello Avenue. Martinez then began riding his bike down Roscoe Street.¹

¶ 14 As he was riding down Roscoe Street, Martinez was hit from behind by a minivan, causing him to fall to his knees. He then turned around to see the driver and the passenger of the van. He could not identify the driver but alleged that defendant was seated in the passenger seat. He recognized defendant because he had "seen him a couple of weeks ago before that." Martinez then began running down Roscoe Street. While he was running, he heard four or five gun shots. He turned his head to see four or five individuals standing at the corner of Roscoe Street and Monticello Avenue. They were all wearing black hooded sweatshirts with the hood up. He could not identify any of them nor did he see a gun. He then ran back to his home not far from the scene. He tried to call Delgado but received no answer. A Chicago police detective came to his door later that night. Martinez described this conversation as short, and he was unable to recall the specifics of what was discussed. He then accompanied the detectives back to area headquarters where a longer conversation took place. During this conversation, he identified the three cars he observed prior to the shooting. He told the detectives the first car was a green Blazer with a broken window, the second was the minivan that hit him, and the third car was a red two-door.

¶ 15 Martinez was interviewed again on February 23, 2012. He specifically denied seeing the defendant on the corner of Roscoe Street and...