People v. Rincon

• Decision Date: 23 December 2008
• Docket Number: No. 2-07-0393.,2-07-0393.
• Citation: 900 N.E.2d 1192
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Manuel J. RINCON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

900 N.E.2d 1192

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Manuel J. RINCON, Defendant-Appellant.

No. 2-07-0393.

Appellate Court of Illinois, Second District.

December 23, 2008.

Rehearing Denied February 6, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Elgin, James K. Leven, Attorney At Law, Chicago, IL, for Appellant.

John A. Barsanti, Kane County State's Attorney, St. Charles, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Elgin, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, IL, for Appellee.

Presiding Justice ZENOFF delivered the opinion of the court:

Following a bench trial, defendant, Manuel J. Rincon, was convicted of attempted arson (720 ILCS 5/20-1(a), 8-4(a) (West 2004)). Defendant appeals, arguing that his right to a jury trial was violated, that the State failed to prove his guilt beyond a reasonable doubt, and that the State committed a prejudicial discovery error. For the following reasons, we affirm.

FACTS

Defendant was indicted for attempted arson (720 ILCS 5/20-1(a), 8-4(a) (West 2004)) and criminal trespass to land (720 ILCS 5/21-3(a)(2) (West 2004)). The indictment stemmed from an incident in the early morning hours of July 13, 2005. Prior to trial, the State dismissed the criminal trespass to land charge.

At the arraignment on January 19, 2006, defendant was present with his attorney when the court informed him of his rights, including the following:

"You have constitutional rights. You have the right to be represented by a lawyer. It appears that you are ably represented by Attorney Corbett.

You have the right to remain silent.

You have the right to plead not guilty.

You are presumed innocent.

You have the right to a trial by judge or jury."

Defendant pleaded not guilty and reserved his right to a trial by jury. The common-law record contains jury trial orders dated April 21 and July 21, 2006, setting the case for jury trial on October 27, 2006.

On October 27, 2006, defendant was present in open court at a final pretrial conference. After granting the State's motion to deny defendant inquiry into the criminal histories of its witnesses, the court asked defense counsel if he had any motions in limine. Defense counsel replied: "Judge, nothing in writing. We are indicating a bench trial on this matter, so we are answering ready to go." Additionally, the following colloquy took place:

"THE COURT: I don't believe we've addressed Mr. Rincon as to a jury waiver. You're advising the court he wants to waive jury?

MR. CORBETT [defense counsel]: Yes, sir.¹

THE COURT: Do you want to reserve until Monday?

MR. CORBETT: Can we reserve it until Monday?

THE COURT: We'll reserve until Monday. So I'll show that both sides are ready." (Emphasis added.)

Following that exchange, the court and defense counsel discussed possible arrival times for witnesses, depending upon whether the trial was a bench or a jury trial.

On October 30, 2006, with defendant present, the court asked defense counsel if the trial would be a bench trial, and counsel responded affirmatively. As on October 27, 2006, defendant voiced no objection. After a conference pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402), which was off the record, defendant elected to go to trial. The court then returned to the State its tendered jury instructions and heard opening arguments. A written jury waiver signed by defendant was filed October 30, 2006, as well.

Maria Loyola was the State's first witness. She testified that she lived in a townhome at 2009 Berkshire Circle, apartment J, in Carpentersville, Illinois, with her husband, four children, and son-in-law. Through her nephew, Loyola had known defendant by his nickname, Payaso, for a few years prior to July 2005. In the days leading up to the incident of July 13, 2005, Loyola's two nephews, her son, and others gathered in her front yard, wearing blue shirts and khaki-colored pants. These were the colors of the Sureno Thirteens street gang, to which the nephews and several of the others belonged. Loyola's son was not a gang member, but his school uniform was blue and khaki. From Loyola's yard, the group regularly "flashed signs" to other boys. Latin Kings gang members also commonly "threw" Kings' signs toward Loyola's house. On the evening of July 12, 2005, Loyola's daughter told her that defendant had gone by their home "making signs." This worried Loyola, who consequently spent the night in her living room.

The living room had a sliding door that opened onto a small patio at the front of the house. At the time, the glass in the door was broken, leaving only a screen. At about 1:40 on the morning of July 13, 2005, the motion sensor light over the driveway was activated, illuminating the yard in front of the patio. Loyola observed in her yard three persons approaching the two trucks parked in her driveway. She recognized defendant when she saw his surprised expression in the light of the motion sensor, and she was able to identify a second man, whom she knew as "Psycho." She was unable to identify the third person, who was wearing a black hoodie. The men were about 10 or 15 feet from the trucks in the driveway. Loyola testified that defendant tried twice with a lighter to light something white sticking out from the top of a bottle being held by Psycho. There was something in the bottle, but Loyola could not identify it and did not smell gasoline. When Loyola saw sparks, she yelled and went outside the screen door onto the patio. The three ran off in the direction from which they had come, to a car parked about three townhouses down the street. Four people were in the car when it drove away.

Loyola never found the bottle or the lighter. No one in her home awakened. There was no damage to her property. Rather than calling the police immediately, because she felt that they would not take her seriously, Loyola waited until that afternoon to go to the police station and report the incident. Subsequently, Loyola identified defendant and a codefendant, Fernando Rodriguez (a.k.a.Psycho), from photo lineups.

Loyola's 18-year-old daughter, Uesenia Ramirez, testified that she lived at the Berkshire Circle townhome with her parents, siblings, and husband. In the days leading up to July 12, 2005, members of the Sureno gang had "hung out" in the yard, dressed in blue and khaki. It was common to have gang signs flashed back and forth. On the evening of July 12, 2005, Ramirez was in the front yard, sitting on the small patio with her younger sister. Her brother and other sister were going in and out of the sliding patio door. No Sureno members were present then. According to Ramirez, at about 8 p.m., a gray, four-door Pontiac drove by with two girls in the front seat and defendant and Rodriguez in the back seat, with defendant nearest the townhouse. Ramirez said that she knew defendant because he used to "hang around with his friends" in that area. As the car drove by, it slowed and defendant was "throwing signs and saying things." From the car, defendant said, "King Love, Sureno Killa [Killer]." Ramirez was afraid, so the family called the police, but they did not respond. Ramirez was asleep during the 1:40 a.m. incident and did not hear anything, but she went with her mother that afternoon to the police station.

Manuel Medel, Ramirez's brother-in-law, testified that he owned a 2004 Dodge Ram pickup truck. He had financed it for approximately $30,000. Medel had parked it in Loyola's driveway for the night of July 12-13, 2005. He had given no one permission to damage it or to be near it.

Detective Thomas Heitkamp of the Carpentersville police department testified that he investigated the attempted arson at Berkshire Circle. After being assigned to the case on July 19, 2005, he compiled photo lineups and showed them to Loyola the same day. This was Heitkamp's first contact with Loyola. Heitkamp was accompanied by Officer George Gonzalez, who served as a translator. Gonzalez translated the standard photo spread advisory form, which stated that the suspect may or may not be in the lineup, that Loyola did not have to make an identification, and that Loyola was not to assume that the officers knew whether the suspect was in the lineup. Loyola signed the form and then immediately identified defendant in the first lineup. She then identified Rodriguez from the second lineup. Heitkamp had Loyola sign her name and write a brief description of what she had seen each suspect do on July 13. Each of the identified photos was one of six photos in its lineup and was located in the top left position. Prior to July 19, Heitkamp had been familiar with defendant and knew his nickname, Payaso, which was included in the police report.

Following Loyola's identifications, Heitkamp had a warrant issued for defendant's arrest. He did not speak with defendant or defendant's family prior to having the warrant issued. No physical evidence or other eyewitnesses were found; consequently, there was no evidence of what was in the bottle. No one took a statement from Rodriguez. The police report, made on July 13, 2005, at 12:50 p.m., listed the incident as criminal damage to property (not attempted arson) occurring at 1:40 a.m. that day. Heitkamp was not aware of any calls made to the police department from the Loyola residence.

Gonzalez testified that he had been part of the gang and drug unit, also known as the community response team, for four years. After describing his experience and training, and over defense objection, Gonzalez was qualified by the court as an expert on gangs. Gonzalez was knowledgeable about two street gangs in Carpentersville — the Latin Kings and the Surenos. The Kings and the Surenos were rival gangs in July 2005. Each gang had areas of the city that it considered its own. The Kings considered the area of Berkshire Circle to be theirs. To intimidate, they used the slogans "King Love" ...