People v. Temple

• Decision Date: 27 June 2014
• Docket Number: No. 1–11–1653.,1–11–1653.
• Citation: 14 N.E.3d 622
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Michael TEMPLE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

14 N.E.3d 622

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Michael TEMPLE, Defendant–Appellant.

No. 1–11–1653.

Appellate Court of Illinois, First District, Fifth Division.

June 27, 2014.

14 N.E.3d 626

Abishi C. Cunningham, Jr., Public Defender, of Chicago (Eileen T. Pahl, Assistant Public Defender, of counsel), for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, and Margaret G. Lustig, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Michael Temple was found guilty of two counts of first degree murder, and one count each of attempted first degree murder, and aggravated battery with a firearm. The trial court sentenced defendant to two concurrent sentences of 45 years for the murder convictions, to run consecutive to two concurrent sentences of 31 years for the attempted murder and 30 years for the aggravated battery with a firearm conviction. On appeal, defendant contends: (1) the trial court erred by admitting prior consistent statements or, in the alternative, defense counsel was ineffective for failing to object to the State eliciting prior consistent statements from its witnesses; (2) the trial court erred by admitting improper hearsay from the testifying police officers; (3) the prosecutor improperly distorted the burden of proof and unfairly bolstered its own evidence during rebuttal argument; (4) the identification evidence was insufficient to prove defendant guilty beyond a reasonable doubt; and (5) the mittimus must be corrected because defendant was improperly convicted for more than one offense arising out of the same acts. We affirm in part, vacate in part, and correct the mittimus.

¶ 2 At trial, Jesus Patino testified that at approximately 8:25 p.m. on August 10, 2009, he was walking north on Calhoun Avenue toward 107th Street with his brother, Ulises Patino, Alejandra Gonzalez, and Israel Negrete. They were walking a dog and, while they were walking, Patino saw a car “kind of speeding” toward Calhoun. Patino told his friends to “look out for the car because it looks suspicious.” As the car approached the stop sign it slowed down, then sped up again and “that's when a shot was fired.” Patino observed a Caucasian arm hanging out of the driver's side window with a gun, heard a gunshot, and then saw sparks. Patino recognized the driver and shooter as Michael Temple, the defendant, but not until after the first shot. Patino recognized defendant because they used to go to school together, although they were not friends. Patino was about 40 to 45 feet away when he identified defendant; the sun was still out, the streetlights were just turning on, no cars were parked on the street, and nothing blocked Patino's view of defendant. Three African American men rode in the car with defendant but defendant was the only person Patino saw firing a gun. After the first shot, Patino turned and ran south on Calhoun. He heard eight to ten additional gun shots but he did

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not look back until he no longer heard gunshots. Then he stood up and saw the car turn left onto Bensley Avenue. Ulises and Negrete had both been shot. Patino called 9–1–1 for an ambulance, and also gave a description of the vehicle: a four-door, light blue Oldsmobile Cutlass that drove toward Bensley and 107th, where the Trumbull Homes are located. When the police arrived, Patino told them that defendant was the shooter, identifying him by the name Michael Temple, and that defendant went by the nicknames of White Boy Slim and Snowflake. Patino also told the officers that the car used in the shooting was a four-door Oldsmobile Cutlass. Ulises and Negrete were both taken to the hospital. At some point, Patino learned Ulises passed away.

¶ 3 At approximately 12:35 a.m. on August 11, 2009, the police took Patino and Gonzalez to Oglesby Avenue and 104th Street, about three blocks north of the intersection where the shooting had occurred. There, Patino recognized the vehicle from which he had seen defendant firing. Patino also identified a photo of the car in open court as the car used in the shooting. Patino then spoke with detectives and identified a photo of defendant as the shooter because defendant was the person Patino saw firing the gun towards them.

¶ 4 On cross-examination, Patino admitted that he had not seen defendant in three or four years prior to the shooting. Patino testified that, at the time of the shooting, defendant was wearing a white, short-sleeved shirt and was clean-shaven. Patino did not tell the police that defendant had a beard and defendant also had a beard in the photo that the police showed to Patino. Patino testified that, just a few hours after the shooting, he told the detectives that interviewed him that he saw a car driving slowly on 107th from Hoxie Avenue and, as he and his friends reached the intersection, he told his friends to turn and walk back the other way. Then the car sped up to the intersection. He did not remember whether he told the detectives that he began to get on the ground by a tree when the gunshots were fired, but he was not on the ground when the first shots were fired. Patino also testified on cross-examination that he saw defendant fire the first shot, and then he went down to the ground and heard more shots fired.

¶ 5 Alejandra Gonzalez substantially corroborated Patino's testimony. She testified that at approximately 8:25 p.m. on August 10, 2009, she was walking north on Calhoun with Patino, Negrete, and Ulises. When they were at the intersection of 107th and Calhoun, Gonzalez heard Patino say to watch out for a car. She looked at the car, which was driving slowly west on 107th. Gonzalez described the car as an “older model * * *, a four door, like a grayish, bluish, midnight blue color.” It was “slowly approaching the middle of the street, and then once it comes to a stop, it then starts to drive off.” After the car passed through a stop sign, Gonzalez heard gunshots coming from the driver's side of the car. She heard a gunshot, and then saw the gun being fired. She saw a white male hand pointing out the driver's side window toward them. She saw the shooter's face for “[a] little more than half a minute” but she did not know who he was at the time. He was wearing a white T-shirt and no hat. Gonzalez identified defendant as the shooter in open court. She was three to five feet away from the car when she saw defendant's face and nothing was blocking her view, and Patino was standing three or four feet behind her. Gonzalez heard four or five additional shots after the first shot and the car kept moving west. “And then my body [was] dragged to the ground because I [heard]

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the gunshots. So I [fell] down to the ground.” When the shooting was over, she turned her attention to Ulises and eventually went to the hospital with Ulises. Gonzalez eventually learned that Ulises passed away.

¶ 6 At 12:35 a.m. on August 11, 2009, Gonzalez went to 10431 South Oglesby with a police officer and Patino, where she saw the car that was used in the shooting. At approximately 12:40 a.m. on August 12, 2009, Gonzalez went to the police station and identified defendant as the shooter in a lineup. Before viewing the lineup, a detective told Gonzalez that the suspect may or may not be in the lineup and that she was not required to make an identification.

¶ 7 On cross-examination, Gonzalez said she had seen defendant once or twice prior to the night of the shooting around the neighborhood. She did not recall when she had seen him before but she never talked to him and had not been in the same place with him for more than a minute. Gonzalez never saw defendant leave the car. The car moved the entire time the shooting was occurring. Gonzalez saw defendant for the first time when Patino told her to watch out for the car. When Gonzalez spoke with the detectives, she believed she told them that she saw the shooter's face before the shooting began. She described the car as midnight blue, but when asked whether midnight blue was a dark color she said she “wouldn't think so.” In regard to the car she identified as the shooter's car, the following exchange occurred:

“DEFENSE COUNSEL: Is that a car that's colored midnight blue?

WITNESS: Well, now that you—no, but in my understanding, it's yes. But to answer your question, no.

DEFENSE COUNSEL: Would midnight blue be a darker blue, Miss Gonzalez?

WITNESS: Yes.”

Gonzalez also admitted that at some point before she viewed the lineup, Patino told her defendant was the shooter. Defendant did not have a beard at the time of the shooting but was “probably a little scruffy.”

¶ 8 On redirect-examination, Gonzalez said she turned her back during the second round of shots, so she did not know if defendant exited the vehicle while her back was turned. No one told Gonzalez who to identify in the lineup and no one told her what defendant looked like before she viewed the lineup. Gonzalez also testified that she did not identify defendant because Patino told her defendant was the shooter, she...