People v. Rebollar-Vergara
| Decision Date | 25 March 2019 |
| Docket Number | No. 2-14-0871,2-14-0871 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose REBOLLAR-VERGARA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 A jury found defendant, Jose Rebollar-Vergara, guilty of first-degree murder ( 720 ILCS 5/9-1(a)(1) (West 2012)), based on acts committed with his codefendant, Jose Garcia, who fatally shot Gabriel Gonzalez outside a convenience store.
¶ 2 On direct appeal, defendant requests a new trial to remedy three errors: (1) the State violated his right to due process by securing an indictment supported by misleading testimony that he flashed "gang signs" at Gonzalez and "confessed" to the police, (2) Garcia's statement that defendant should not be charged with murder was an admission against penal interest that was erroneously excluded, and (3) the State repeatedly misstated during closing argument that Garcia held the position of "security" in the Latin Kings street gang. Defendant also disputes the sufficiency of the evidence. We affirm.
¶ 4 Many of the underlying facts are no longer in dispute. Gonzalez was shot to death outside the One Stop Food & Liquor convenience store in Round Lake Beach at about 12:40 a.m. on March 10, 2013. He had one gunshot wound
in his back. Ten shell casings were found in the parking lot.
¶ 5 Silvia Saavedra was hosting a house party on the night of the shooting. Her boyfriend, Francisco Acevedo, was there with defendant, Garcia, and others. Defendant, Garcia, and an acquaintance, whom defendant identified as "Andrew," left the party and walked to the store, which was equipped with a 13-camera surveillance system. The cameras were recording areas inside and outside the store that night. Defendant has consistently denied knowing that Garcia had a gun with him.
¶ 6 Defendant, Garcia, and Andrew walked to the beer cooler in the rear of the store. Gonzalez entered the store and went to the counter to purchase a loose cigarette. Defendant, Garcia, and Andrew walked to the counter. Defendant and Garcia briefly exchanged words with Gonzalez. Defendant told a police officer during a video-recorded interview that he was a member of the Lawrence and Kedzie branch of the Latin Kings street gang when he lived in Chicago but that he was no longer involved with the gang. Defendant also said that he recalled fighting Gonzalez in a bar a year or two before the shooting and thought that Gonzalez might have been a member of a rival gang, the Maniac Latin Disciples (MLD), based on the way he was wearing his baseball cap on the night of the shooting.
¶ 7 The store's surveillance video shows Gonzalez backing out of the store and continuing backward across the parking lot, tipping his cap toward defendant and Garcia, who followed him. Defendant and Garcia exchanged trash talk with Gonzalez, while Andrew lingered a few yards away. Defendant told a police officer that he exited the store intending a fist fight with Gonzalez but that he heard gunshots instead. Garcia had fired several shots at Gonzalez. Defendant, Garcia, and Andrew ran from the scene before the police arrived.
¶ 8 Garcia was arrested and confessed to shooting Gonzalez. He told the police, "I just shot him, I kept doing it, but I didn't know I was actually hitting him." Garcia was convicted of first-degree murder in a separate trial and sentenced to 62 years' imprisonment. Andrew was never charged.
¶ 9 The State's theory of the case was that defendant was accountable for Garcia's conduct. "Accountability is not a crime in and of itself but, rather, a mechanism through which a criminal conviction may result." People v. Pollock , 202 Ill. 2d 189, 210, 269 Ill.Dec. 197, 780 N.E.2d 669 (2002). A defendant is legally accountable for another person's criminal conduct when "either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 2012). To establish that a defendant intended to promote or facilitate a crime, "the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design." People v. Fernandez , 2014 IL 115527, ¶ 13, 379 Ill.Dec. 68, 6 N.E.3d 145. "Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ " Fernandez , 2014 IL 115527, ¶ 13, 379 Ill.Dec. 68, 6 N.E.3d 145 (quoting In re W.C. , 167 Ill. 2d 307, 337, 212 Ill.Dec. 563, 657 N.E.2d 908 (1995) ).
¶ 10 The State's position was that defendant and Garcia acted with a common criminal design, and, to establish defendant's accountability, it relied on his statement that he exited the store with the intent to fight Gonzalez when Garcia shot him. The State also cited evidence that defendant and Garcia were Latin Kings, with Garcia allegedly serving in the role of security for the gang. Defendant and Garcia allegedly acted with the belief that Gonzalez was a member of a rival gang.
¶ 12 The State presented to a grand jury the testimony of Officer Kenneth Maier of the Village of Vernon Hills Police Department and the Lake County Major Crimes Task Force. Through a series of leading questions by an assistant state's attorney (ASA), Officer Maier testified that he had learned that defendant, Garcia, and Gonzalez had been at the store at 12:40 a.m. on March 10, 2013. While Gonzalez was at the counter, either defendant or Garcia walked up to him and said "fix your s***, Disciple." Officer Maier learned that the statement was a reference to Gonzalez1 wearing his cap in a way that indicated he was a member of the Gangster Disciples, who sometimes are known as MLDs. Officer Maier learned that defendant and Garcia were members of the Latin Kings, but that Gonzalez had no gang affiliation.
¶ 13 Officer Maier affirmed that, at some point, defendant and Garcia began arguing with Gonzalez. As Gonzalez began to walk out of the store, either defendant or Garcia started flashing gang signs at him. Gonzalez walked backward across the parking lot, and defendant and Garcia followed him outside, flashing gang signs and arguing with him.
¶ 14 According to Officer Maier, Garcia drew a handgun and began shooting at Gonzalez, who turned and ran as soon as he saw the gun. Garcia fired 10 shots, and one struck Gonzalez in the back, rupturing his aorta. Gonzalez took two steps and fell to the ground, where he died. Officer Maier testified that defendant and Garcia were arrested the day after the murder. The grand jury was not shown the video recordings from the surveillance system.
¶ 15 On April 24, 2013, defendant and Garcia were indicted on three counts of first-degree murder ( 720 ILCS 5/9-1(a)(1), (a)(3) (West 2012)). On September 9, 2013, defendant, who was represented by the Lake County public defender's office at the time, filed a motion to dismiss the indictment, arguing, inter alia , that the State had presented perjured testimony to the grand jury, based on the following exchange between the ASA and Officer Maier:
The motion alleged that defendant "has been prejudiced because of perjured testimony which alleged that defendant had confessed to the crime, specifically that he was aware of or participated in the shooting." The motion argued that
¶ 16 The next day, on September 10, 2013, defendant filed a supplemental motion to dismiss the indictment. The motion amplified the allegation of perjured testimony, based on the following colloquy before the grand jury:
¶ 17 To show the trial court that defendant had neither confessed nor flashed gang signs at Gonzalez, the defense presented segments of a video-recorded police interview of defendant before he was charged.2 In the first segment, defendant said that he was no longer "gangbanging." When Officer Paul Grace told him, "I don't think that you knew that this was going to happen," defendant replied, "I didn't even know what the f*** happened." According to defendant, he showed up at the store and saw "that one guy," referring to Gonzalez. They were going to fight; defendant followed him outside, and Gonzalez "started talking s***" and "called [defendant] out." Next, "out of nowhere, when I was just butting up with him, you know, I was about to fight him and s*** and out of nowhere: pow, pow, pow." Defendant then "took off."
¶ 18 When asked to "start from the beginning," defendant said that he went to the store for beer. He walked out and saw "that kid." Defendant and Gonzalez had "probably went at it" in the past, and they started arguing. Defendan...
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