People v. Rojas

• Decision Date: 15 August 2005
• Docket Number: No. 1-03-3196.,1-03-3196.
• Citation: 834 N.E.2d 513
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose ROJAS, Defendant-Appellant.
• Court: Illinois Supreme Court

Page 513

834 N.E.2d 513

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jose ROJAS, Defendant-Appellant.

No. 1-03-3196.

Appellate Court of Illinois, First District, First Division.

August 15, 2005.

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Steven Decker, Donald S. Honchell, Chicago, for Appellant.

Richard A. Devine, Renee Goldfarb, Peter Fischer, Kathleen Warnick, Office of the Cook County State's Attorney, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Defendant, Jose Rojas, appeals from his convictions for first degree murder by personally discharging a firearm and first degree murder while armed with a firearm after a jury trial. He was tried with his codefendant Erik Ramirez before separate juries that were excused at those points necessary to protect them from duplicative or inadmissible testimony. He contends that the State failed to prove his identity as the shooter of Alberto Villagomez beyond a reasonable doubt. Defendant further contends that the circuit court erred in admitting testimony surrounding his alleged intimidation of a witness, and argues that his trial counsel was incompetent for failing to preserve the issue of the erroneous admission of his statements for review. Alternatively, he argues that if trial counsel opened the door for the introduction of the witness-intimidation testimony through his cross-examination of the witness, then counsel was incompetent for opening the door. Finally, defendant contends that trial counsel was incompetent in failing to move to suppress his arrest and the evidence obtained in the search of his car. We affirm.

FACTUAL BACKGROUND

At defendant's trial, Rodolfo Guzman testified that he and his friend, the victim, Alberto Villagomez, spent time together starting around 6:30 p.m. on April 20, 2001. Guzman testified that both he and Villagomez were former members of the Two Six street gang. While together, the two drank beer. Later that night, they attended a party where they continued to drink as well as ingest "key shots" of cocaine, the amount that could be held on the end of a key. Guzman denied any intoxication from the cocaine, however.

Guzman explained that he and Villagomez left the party after midnight to get food. As they drove to a restaurant on Pulaski Street, a gray van pulled up alongside them. The side door of the van opened, and while the occupants of the van flashed gang symbols and screamed at them, someone threw a bottle at Villagomez' car, breaking one of its windows.

According to Guzman, Villagomez then drove his car into a gas station at 28th Street and Pulaski to clean up the broken glass inside the car. Once stopped, Guzman went to the gas station clerk to get change for the station's coin-operated vacuum. Guzman then went behind the gas station, to an alley, to urinate.

While in the alley, Guzman saw a white Suburban sport utility vehicle (SUV) approach. The front passenger made a Two Six gang sign with his hands. Guzman testified that, in order to avoid any trouble, he made the same sign back. At that point, the passenger exited the SUV and he and Guzman exchanged words. When he saw a gun in the passenger's hand, Guzman started to run back across the gas station and shouted to Villagomez to flee as well. Guzman heard shots, turned around, and saw the SUV passenger shoot Villagomez. The gas station clerk testified to hearing a series of shots and, shortly thereafter, observing Villagomez enter the shop, clutching his stomach and asking for help, and then collapsing. According to a Cook County medical examiner, Villagomez was shot five times in the back, each shot subsequently exiting his body, and died from his wounds.

William Wright and Luis Cerritos testified that they were members of the Latin Kings street gang, like defendant. Both testified that the Latin Kings and Two Sixers were rivals. Wright and Cerritos were drinking with others in a garage in the late evening of April 20 and early morning of April 21 when defendant arrived in his white Suburban SUV, which had a broken window. Codefendant Ramirez, who was already at the garage, approached the SUV and had a conversation with defendant. Ramirez then got in the passenger side of the SUV and told Wright and Cerritos to get into the backseat, which they did.

Both Wright and Cerritos testified that defendant related that Two Sixers broke his window and that he wanted revenge. Defendant drove to the border of Latin King and Two Six territory. At that point, defendant and Ramirez changed seats and Ramirez drove the group into Two Six territory. As Ramirez drove the Suburban into an alley behind a gas station, they observed a young man standing behind the station. According to both Wright and Cerritos, defendant, though a Latin King, then flashed a Two Six hand symbol. When the man reciprocated with the same symbol, defendant chased after him with a gun he had retrieved from inside the Suburban's dashboard. Wright and Cerritos heard shots fired, and when defendant returned, they drove away. In the process of fleeing the area, Wright and Cerritos explained that a dark Cadillac chased them until defendant shot at that car.

Defendant's trial counsel attempted to discredit both Wright's and Cerritos' testimony by eliciting that both originally denied knowledge of the murder and only implicated defendant after the police informed them that they had been identified as being involved in the shooting. On redirect examination, to explain its witnesses' changing accounts of events, the State elicited from Cerritos that Latin Kings were instructed that they would be killed if they ever aided the prosecution of a fellow gang member, and elicited from Wright that defendant repeatedly told him not to "trick on him," meaning not to implicate him in the offense. This testimony on redirect was admitted over defendant's trial counsel's objection that it exceeded the scope of his cross-examination.

Chicago police sergeant Lance Becvar testified about the events surrounding defendant's arrest. Becvar was on patrol on the morning of April 21, 2001, and heard a shot fired in the vicinity of 30th Street and Lawndale. Approximately five seconds later, a white Suburban SUV sped past his patrol car going between 10 to 20 miles over the speed limit. Becvar pulled his car behind the SUV and radioed that he was following a vehicle he believed to be involved in a shooting. Around 30th Street and Central Park Avenue, Becvar activated his police lights and pulled the SUV over. He identified defendant in court as the front-seat passenger and Ramirez as the driver.

Once backup arrived, all four occupants of the SUV were ordered out of the vehicle. Becvar searched the SUV and discovered a gun hidden behind the center air-conditioning duct in the dashboard. Later, police brought Guzman to the scene, where he identified defendant as the person who shot Villagomez.

Police evidence technicians recovered a bullet lodged in a van parked across the street from the gas station. Testing of the bullet revealed that it had been fired from the gun Becvar recovered from defendant's SUV. However, testing did not reveal defendant's fingerprints on the gun. Likewise, tests performed on defendant's hands were negative for the presence of gunshot residue, though a forensic scientist testified that his hands also failed to test positive for gunshot residue after he fired the gun once and explained that environmental factors, including wind, could produce negative results.

ANALYSIS

I. Sufficiency of the Evidence

Defendant first contends that the State failed to prove his guilt beyond a reasonable doubt since there was no physical evidence to tie him to the crime and the State's witnesses were wholly incredible in identifying him as the shooter. We disagree.

To determine whether sufficient evidence was presented to sustain a conviction, a reviewing court must consider all the evidence in the light most favorable to the State, and then determine if a rational trier of fact could have concluded that the State proved the elements of the crime charged beyond a reasonable doubt. People v. Cox, 195 Ill.2d 378, 387, 254 Ill.Dec. 720, 748 N.E.2d 166 (2001). "Under this standard, a reviewing court must allow all reasonable inferences from the record in favor of the prosecution." People v. Bush, 214 Ill.2d 318, 326, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005). Although the determinations of the trier of fact are not conclusive, they are entitled to great deference, so that a conviction will only be overturned where the evidence "is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." People v. Ortiz, 196 Ill.2d 236, 259, 256 Ill.Dec. 530, 752 N.E.2d 410 (2001). A reviewing court will not retry the defendant. People v. Green, 322 Ill.App.3d 747, 754, 255 Ill.Dec. 916, 751 N.E.2d 10 (2001).

Specifically, with regard to defendant's identification by Guzman, a single witness identification of the accused as the person committing the crime may be sufficient proof when the witness viewed him under circumstances permitting a positive identification. People v. Lewis, 165 Ill.2d 305, 356, 209 Ill.Dec. 144, 651 N.E.2d 72 (1995). But, a conviction cannot stand when a witness' identification of the accused as the criminal perpetrator is vague and doubtful. People v. Ash, 102 Ill.2d 485, 494, 82 Ill.Dec. 373, 468 N.E.2d 1153 (1984). In People v. Slim, 127 Ill.2d 302, 130 Ill.Dec. 250, 537 N.E.2d 317 (1989), our supreme court said that in assessing identification testimony we should use the following factors set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972): "(1) the opportunity the [witness] had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by...