People v. Salcedo

• Decision Date: 30 August 2010
• Docket Number: No. 1–08–3148.,1–08–3148.
• Citation: 352 Ill.Dec. 596,2011 IL App (1st) 083148,954 N.E.2d 679
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jose SALCEDO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 083148

954 N.E.2d 679

352 Ill.Dec. 596

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

v.Jose SALCEDO, Defendant–Appellant.

No. 1–08–3148.

Appellate Court of Illinois, First District, Fourth Division.

June 9, 2011.Rehearing Denied Aug. 30, 2010.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Michael G. Soukup, Assistant Appellate Defender, for Defendant–Appellant.Anita Alvarez, State's Attorney (Alan Spellberg, Kathleen Warnick, Emma Nowacki, Assistant State's Attorneys, of counsel), for Plaintiff/Appellee.

OPINION

Presiding Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Jose Salcedo was found guilty of the first degree murder of Keith Thomas (720 ILCS 5/9–1(a) (West 2004)) and aggravated discharge of a firearm (720 ILCS 5/24–1.2(a)(2) (West 2004)). The trial court sentenced defendant to 28 years in prison for first degree murder, an additional 25 years in prison for discharging a firearm causing death and a concurrent 10–year prison term for aggravated discharge of a firearm. On appeal, defendant asserts that (1) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); (2) the trial court erroneously submitted an initial aggressor instruction to the jury; (3) the trial court improperly prohibited defendant from presenting evidence regarding the victim's prior act of aggression; and (4) trial counsel was ineffective for stipulating to the recovery of firearm-related evidence from defendant's home. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The unfortunate events that led to the death of Keith Thomas occurred as he was driving to pick up his mother at a Chicago Transit Authority (CTA) elevated train station in the late afternoon of September 28, 2005. As he drove north on Pulaski Road, Thomas was shot several times by defendant, who claimed that the victim had struck his motor vehicle at least once and then allegedly brandished a gun at defendant. Defendant fled the scene, but was apprehended several days later. A subsequent search of the victim and his automobile revealed no weapons, just his dead body with a cell phone in his lap. While it was undisputed that defendant was the individual who shot the victim, a major controversy at trial concerned whether the alleged vehicular collision contributed to the defendant's decision to shoot the victim, on the basis that he felt in fear for his life.

¶ 4 The State and the defendant obviously pursued diametrically opposing theories at trial. The State's theory was that on the day in question, the victim and defendant were both driving when the victim allegedly bumped into defendant's car and continued driving. As a result, defendant became angry, chased the victim and intentionally fired multiple shots into the victim's car, resulting in his death. The State also argued that because defendant was the initial aggressor, he could not have acted in self-defense or the unreasonable belief that self-defense was warranted. Defendant testified he was driving with his three-year-old son when the victim intentionally struck defendant's car. Defense counsel argued that defendant, who had a heightened sense of fear for his safety because he had previously been shot, believed he saw a silver gun in the victim's hand and fired multiple shots at him. Counsel dealt with the absent weapon by arguing that the gun may have been removed from the car or that defendant mistakenly believed that the silver cell phone was a gun. Counsel asked the jury to find defendant not guilty based on self-defense or, alternatively, guilty of second degree murder based on an unreasonable belief that self-defense was warranted.

¶ 5 Michael Considine testified, in pertinent part, that at about 5:30 p.m. on September 28, 2005, he was on his way to pick up his mother from the CTA Orange Line train station when he stopped his car facing east at a red light at the intersection of 51st Street and Pulaski Road. He then heard multiple gunshots and looked in the direction of where the shots had been fired. He saw a white or grey car, which had been stopped facing north in the left turning lane, drift toward oncoming southbound traffic and stop at the curb. Next to the passenger side of that car was a red car, which continued to drive north at a high speed. Considine called 911 and looked inside the grey car but did not see a cell phone. He did not put the car in park and did not see anyone else put his or her hand inside the car. When the police arrived, Considine described the red car and its driver.

[352 Ill.Dec. 600] ¶ 6 Officer John Svienty testified that on September 28, 2005, he and his partner were assigned to this investigation. When they arrived at 5054 South Pulaski Road at 5:45 p.m., Officer Svienty saw a grey car facing northwest in the southbound lanes and an unresponsive individual inside. The individual and his car had been shot and a grey cell phone was on his lap. Officer Svienty spoke to Considine, who relayed what he had seen and described the offender and his car. After looking at a photograph showing that the victim's gearshift was in park, Officer Svienty testified that he did not move the gearshift to park and did not know who did. He did not recover anything from the interior of the car.

¶ 7 Detective Roger Murphy testified that when he and his partner arrived at the scene at about 6:15 p.m. on the day in question, the weather was cold, rainy and windy. Detective Murphy saw the victim in a grey car and observed a cell phone on his lap. He also observed damage to the victim's car, specifically, scrapes on the front left bumper, bullet holes in the passenger side door and shattered glass. Detective Murphy also found fired cartridge cases from a semiautomatic handgun and spoke to Considine, who described the offender and his car, which was last seen going north on Pulaski Road.

¶ 8 Forensic investigator Donald Fanelli testified that when he arrived at the scene at about 7 p.m., he assisted with the recovery of firearm evidence, including .45–caliber bullets and cartridge cases. Upon being shown photographs of the scene, Detective Fanelli testified there were two lanes and an additional turning lane in each direction and that a grey cell phone was in the victim's lap. Detective Fanelli did not find a gun inside the victim's car.

¶ 9 Marie Slaga, the victim's mother, testified that on the day in question, the 19–year–old victim drove her in their grey or silver Chevrolet Malibu to the CTA Orange Line train station at 51st and Pulaski Road to go to work. At 4:30 p.m., they spoke on the phone and arranged for him to pick her up from the same station at about 6:10 p.m. When Slaga arrived, she observed significant traffic, crime scene tape and police officers. She called the victim to tell him not to pick her up but could not reach him. When Slaga walked toward the police officers, she was told that someone had been shot and a grey car was involved. She then recognized her own car, which was at an angle facing north in the southbound lanes of Pulaski Road, and she learned from detectives that her son had been shot.

¶ 10 The parties stipulated to the testimony of several police officers, including Officer Alfonso Castillo, who would testify that he obtained a warrant to search defendant and his apartment regarding a separate investigation. As Officer Castillo and his partner were conducting surveillance outside the apartment on October 3, 2005, they saw defendant drive a maroon 2000 Chevrolet Impala out of his garage. The officers stopped him, recovered his apartment keys and seized his car. Inside the apartment, officers recovered a .45–caliber semiautomatic Ruger firearm, a magazine containing seven .45–caliber rounds of ammunition and an additional round in the chamber of the firearm. The officers recovered a second magazine loaded with six .45–caliber rounds of ammunition, a plastic firearm case and a 9–millimeter Davis Industries pistol, which had two 9–millimeter rounds in its chamber. The officers also recovered a box of 357 Magnum Winchester ammunition, a box of 9–millimeter Winchester ammunition and a box of .45–caliber Winchester ammunition. In addition, the officers recovered a bulletproof vest, defendant's “identification cards” and additional pieces of identification showing defendant lived there. When the officers arrested defendant, they observed that his physical description and car matched the description of the person who shot the victim in this case. Officer Castillo also recalled that a .45–caliber gun was used in the shooting. As a result, he notified the appropriate detectives of defendant's arrest.

¶ 11 Detective John Murray testified that on October 3, 2005, he was assigned to this investigation. When he arrived at work the next day, he learned that defendant had been arrested the day before and was in the custody of a different division of the police station. Upon the request of Detective Szudarski and Detective Murray, defendant was released to their custody and placed in an interview room, where the detectives turned on a recording device. After the detectives took defendant to the restroom, he gave a statement. Detective Murray testified that he never told defendant what he should or should not say and that the detectives did not speak to him in the hallway to the restroom. During Detective Murray's testimony, defendant's statement was published for the jury.

¶ 12 The video shows that after advising defendant of his rights and giving him food, Detective Murray and Detective Szudarski escorted defendant to the restroom. When they returned a few minutes later, defendant told the detectives he was driving on Pulaski Road at about 54th Street after dropping his girlfriend off, when the victim moved behind defendant and hit him a “little bit.” The victim then passed defendant on his right, apparently...