People v. Rodriguez

• Citation: 901 N.E.2d 927
• Decision Date: 15 December 2008
• Docket Number: No. 1-07-0137.,1-07-0137.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel RODRIGUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

901 N.E.2d 927

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel RODRIGUEZ, Defendant-Appellant.

No. 1-07-0137.

Appellate Court of Illinois, First District, First Division.

December 15, 2008.

Rehearing Denied February 23, 2009.

Office of the State Appellate Defender, Patricia Unsinn, Deputy Defender, Chicago (Debra Loevy-Reyes, of counsel), for Appellant.

Richard A. Devine, State's Attorney, Chicago (James E. Fitzgerald, Ashley Romito, Janet C. Mahoney, of counsel), for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Defendant Daniel Rodriguez was convicted by a jury on September 21, 2005, of the first-degree murder of 18-year-old Ricardo Vasquez. In addition, the jury found that defendant personally discharged the firearm that proximately caused Vasquez's death. The murder was the result of a gang-related, drive-by shooting on April 1, 2000, at approximately 9:30 p.m., in the vicinity of 8707 South Escanaba Street in Chicago. Defendant was sentenced to 45 years of incarceration, which was the minimum available sentence and which included a 25 year enhancement for discharging the firearm that proximately caused the victim's death. On appeal, defendant makes two claims. First, defendant claims that the trial court abused its discretion by giving a portion of Illinois Pattern Jury Instruction, Criminal, No. 3.15 (4th ed. 2000) (IPI Criminal 4th). Defendant claims that social science evidence indicates that part of the instruction is based on a mistaken assumption, namely that an identification is more credible if the witness is more certain. Second, defendant claims that his trial counsel was ineffective for failing to file a motion to suppress a show-up identification of defendant by two witnesses an hour after the murder.

For the following reasons, we affirm the conviction.

BACKGROUND

Defendant's trial began on September 19, 2005. At trial, eight witnesses testified; and all eight were called by the State. Of the eight, four were witnesses to the shooting: (1) Carlos Luna; (2) Camelia Prado; (3) Joseph Gonzalez; and (4) Antoine Lacy. Francisco Ortiz, an acquaintance of defendant, testified that, on the morning of the shooting, defendant stated that he had "some business" with members of a rival gang because they had damaged his vehicle, the night before. The remaining three witnesses were law enforcement personnel: (1) Officer Edward Maras, an officer with the Chicago police department, who detained defendant after the shooting; (2) Scott Rochowicz, a forensic scientist with the Illinois State Police, who tested gunshot residue recovered from defendant's hands; and (3) Adrienne Segovia, a deputy medical examiner with Cook County, who performed an autopsy on the shooting victim.

Of the four event witnesses, two were able to identify defendant as the shooter: (1) Antoine Lacey; and (2) Joseph Gonzalez. Lacey and Gonzalez identified defendant during a show-up procedure shortly after the shooting. Prado, who was also present at the show-up, was unable to identify defendant.

Carlos Luna testified that he was 25 years old, and that in 2000, he was a member of a gang called the Latin Dragons. On April 1, 2000, he was standing with a few friends in front of a house located at 8707 South Escanaba Avenue. There were approximately 10 people standing in front of the house, and approximately 6 were gang members. The streetlights were on, as well as a porch light. Luna observed a four-door grey Cadillac Seville come from east 87th Street and head west on Escanaba Avenue. Luna approached the vehicle, arriving within 15 feet of it, and the vehicle was traveling slowly. Luna testified that "[t]he driver threw his head back and the passenger opened fire." Luna was unable to observe the passenger's face "[b]ecause of the gun flash." Later that night, when Luna was shown an array of photographs at a police station, he was unable to identify either the driver or the passenger of the vehicle.

Luna further testified that he heard four shots fired. When he heard the first shot, he fell to the ground. Luna identified photographs of: Ricardo Vasquez, the shooting victim; the shooter's vehicle; and the house in front of which Luna was standing. When Luna stood up after the shooting, he saw that Vasquez had been shot.

Camelia Prado testified that she was 29 years old and that in 2000, her aunt lived at 8707 South Escanaba Avenue. At 9:20 p.m., Prado was outside that address with her cousins Anna Rosa and Alberto Campos, as well as Carlos Luna, Joseph Gonzalez, Antoine Lacy, Ricardo Vasquez and "other friends." At that time, Prado was a member of the Latin Dragons. Prado was on the porch with her cousin Anna and another cousin and "the kids," while Joseph Gonzalez and Alberto Campos were on the steps. The porch and street lights were on, but the street lights were "like orange" and "dim."

Prado testified that at about 9:20 p.m., a four-door "short-bodied" Cadillac "came off of East 87th Street" on to Escanaba Avenue, and "slowed up in front of [her] aunt's house." Prado watched this vehicle "[b]ecause it's a hot block." Prado explained that when she used the term `hot block,' she meant "because of the gangs and stuff like that it was always shooting, drive-bys and stuff like that." Prado observed two occupants in the vehicle, a driver and a passenger; and that the driver's window was down.

Prado testified that when the vehicle slowed down, Luna approached it and then "[t]he guy on the passenger side started shooting." The passenger "kind of leaned toward the driver, and we just starting seeing like the fire in front of the driver's face, and the driver threw himself back." Prado heard three or four shots, and "the car kept driving and it crashed into a van that was parked." When the first shots were fired, everyone scattered and Prado hid behind a column on the porch. The victim, Vasquez, "started running towards the corner away from the car" when he was shot. After the vehicle crashed into the van, "[i]t kept going straight up the block to 91st Street and made a left."

Prado testified that she called the police. When the police arrived, she provided a description of the shooter's vehicle. Approximately an hour later, the police returned and asked her to look at a vehicle to "see if it's the car you just saw." Prado went with Antoine Lacy and Joseph Gonzalez to view the vehicle. Prado was able to identify the vehicle as the shooter's vehicle, but she was not able to identify the shooter. On the witness stand, Prado identified photographs of Ricardo Vasquez, her aunt's building and the shooter's vehicle.

On cross-examination, Prado denied having told the 911 operator that there were four people in the vehicle. The defense played the 911 tape. On redirect examination, Prado explained that, while she was on the telephone with the 911 operator, someone said to her that there had been four people in the vehicle. Prado repeated that as a question to the person who had stated it. When the 911 operator repeated that statement, Prado first responded "yes" and then responded "no."

Joseph Gonzalez testified that he was a convicted felon, for possession of a handgun. On April 1, 2000, he was "[a]bout 18 maybe." At 9:20 p.m., he was "hanging out" at 8707 South Escanaba Avenue, with a few friends, including Ricardo Vasquez, Camelia Prado, Carlos Luna and Antoine Lacey. Gonzalez was on the first or second step from the bottom, in front of the porch, when he observed a vehicle come "down east 87th," turn left on to Escanaba Avenue, and slow down. The vehicle "came to like almost a complete stop" in front of the house. Due to the street lights, "east 87th [was] all lit up." The vehicle was a blue, "short-body," four-door vehicle. Gonzalez observed two occupants in the vehicle, a driver and a passenger.

Gonzalez testified that he was watching the vehicle "[b]ecause right where we live at it's a real dangerous block, so any car that comes through you have to pay attention to * * * it's a high gang activity area right there." At that time, Gonzalez was a member of the Latin Dragons. Gonzalez tried to look into the vehicle to see "like who the h____, who is that." Gonzalez testified that he could not see the driver, but he could see the passenger, whom he identified in court as defendant. Gonzalez then observed that the passenger "upped a pistol and started shooting," and the driver "leaned back, dude shot right in front of his face pow, pow like that." The passenger fired four or five shots into the crowd in front of and on the porch. After the shots stopped, the vehicle "took off toward the way it was coming, down towards like 91st" and "sideswiped maybe 2 or 3 cars and then it just kept going."

Gonzalez testified that after the vehicle departed, he noticed that "Ricardo [Vasquez] didn't get up." Vasquez was "on the ground shaking" and bleeding. After the police and the ambulance arrived, Gonzalez provided a description of both the shooter and his vehicle. Gonzalez testified that he informed the police that the shooter was "[H]ispanic, about my complexion, shaved on the side with longer hair on top." Approximately 10 or 20 minutes later, the police asked him to travel to another location, where he identified both the shooter and his vehicle. The police shined a light on the suspect so that Gonzalez could see the suspect, but the suspect could not see him. Gonzalez testified that defendant's hair was "[s]haved on one side and longer on top." Gonzales testified that "I think it was 3 of us there in the back of the car" during the identification, and that he was certain Camelia Prado was there. At trial, Gonzalez identified photographs of the shooter's vehicle and the scene of the shooting.

On cross-examination, Gonzalez testified that the street light, located in front of the house, shone straight down, over the street. Gonzalez admitted that he lied when he testified in front of the grand...