People v. Vasquez

• Decision Date: 25 September 2006
• Docket Number: No. 1-05-0106.,1-05-0106.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy VASQUEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

856 N.E.2d 523

368 Ill. App.3d 241

305 Ill.Dec. 718

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy VASQUEZ, Defendant-Appellant.

No. 1-05-0106.

Appellate Court of Illinois, First District, First Division.

September 25, 2006.

Richard A. Devine, State's Attorney of Cook County, Chicago (James E. Fitzgerald, John E. Nowak, Liam F. Reardon, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender of Cook County, Chicago (Jessica Mann, Assistant Appellate Defender, of counsel), for Defendant-Appellant.

Presiding Justice McBRIDE delivered the opinion of the court:

Following an October 2004 jury trial, defendant, Freddy Vasquez, was found guilty of aggravated unlawful use of a weapon by a felon and unlawful use of a weapon by a felon. The trial court sentenced defendant to a term of six-years' imprisonment, ordered defendant to pay $619 in fines, fees and costs, and ordered defendant to submit a DNA sample.

Defendant appeals, arguing that: (1) the State failed to prove defendant guilty beyond a reasonable doubt because the testimony of a police officer was so incredible that it defied logic; (2) defendant did not receive a fair trial because a police officer testified that defendant was a "gang banger"; (3) the trial court erred in failing to provide the jury with a definition for reasonable doubt when the jury requested the definition; (4) defendant was denied his sixth amendment right to effective assistance of trial counsel; (5) defendant is entitled to a reduction in the total amount of fines imposed because (a) the Violent Crime Victim Assistance Fund statute only permits its imposition when no other fines have been imposed and the $4 criminal/traffic conviction surcharge is a fine, and (b) defendant is entitled to a credit for the $4 criminal/traffic conviction surcharge because of his presentence credit; and (6) the statute authorizing the compulsory extraction and perpetual storage of the DNA of felons violated defendant's fourth amendment rights.

Defendant was charged by indictment with aggravated unlawful use of a weapon by a felon and unlawful use of a weapon by a felon.

Defendant filed a motion to quash arrest and suppress evidence. In December 2003, the trial court conducted a hearing on defendant's motion.

Defendant testified at the suppression hearing that on August 30, 2002, at around 3 a.m. he was at the home of Willie Rosado, located at 2502 West Division. Defendant was spending the night at that location. On cross-examination, defendant denied going outside of the building during the early morning hours. Defendant said that the only time he went outside of the residence was when the police arrested him and escorted him out. Defendant stated that Rosado is defendant's brother. Rosado was in front of the house at the time of defendant's arrest.

Defendant was later recalled to the witness stand. Defendant stated that the entrance at 2502 West Division has a glass door at the bottom of the stairway. Once a person walks up the stairs, he walks into the apartment. The stairs do not lead anywhere other than the apartment.

Defendant called Officer William Hartz. Officer Hartz testified that at about 2:45 a.m. on August 30, 2002, he was in the area of 2502 West Division with his partner, Detective Sampin. Officer Hartz stated that they entered the residence at 2502 West Division, but they did not have a warrant to search or a warrant to arrest someone at that location.

Officer Hartz stated that his partner recovered contraband from the common area stairwell. He described the building as a commercial building with a law firm on the main level and an apartment upstairs. There is a solid glass door and stairs that lead to the second level. Officer Hartz stated that he believed there was a doorway at the top of the stairs on the second level. Officer Hartz later conceded that there was no common area at that location, but instead the stairs led straight into the apartment.

Officer Hartz stated that he saw defendant inside the residence of 2502 West Division. Officer Hartz and his partner took defendant into custody. Following Officer Hartz's testimony, defendant rested.

The State called Detective Sayam Sampin to testify. Detective Sampin testified that on August 30, 2002, he was a police officer with the Chicago police department. At the time of the hearing, he was a detective.

On August 30, 2002, at about 2 a.m., Detective Sampin was on duty with his partner, Officer Hartz. They were on patrol in a marked car and in uniform. Detective Sampin was the passenger in the car while Officer Hartz was driving. At that time, they received a call of shots fired in the area of Division and Campbell. Detective Sampin is familiar with the area and understood it to be an area of high-crime activity with multiple gangs in the area. The officers proceeded to that location after the call of shots fired.

The officers did not have a description for who was firing the shots so they toured the area in the car. Detective Sampin observed a lot of gang members on the street from the "Cobra faction." Detective Sampin stated that no one approached their car while they drove around the area. He said usually when Cobra gang members have been shot at, they come up and tell him what the car looked like and in what direction they went. Since no one came up to Detective Sampin that time, he believed that it was possible that the shooter was one of them.

While they were driving around, Detective Sampin saw a flash of movement in an alley. He asked his partner to let him out so he could check out the alley. He got out of the car just north of Division on Campbell. Detective Sampin went to the intersection of Division and Campbell to set up surveillance. He put himself in a position where he could see west down Division from Campbell. Initially, Detective Sampin got behind some parked cars, but he was exposed from the back. Then, he got between two parked cars. He was located east of 2502 West Division. He was approximately 35 feet away.

Detective Sampin saw an individual stick his head out of the door of 2502 West Division, look both ways, and then step out onto the sidewalk. Detective Sampin stated that his line of sight was clear and the street was pretty bright from streetlights. Detective Sampin identified defendant as the person who came out of 2502 West Division.

Shortly thereafter, a gold vehicle pulled up and defendant immediately went to it. The gold vehicle stopped directly in front of 2502 West Division. Defendant went to the passenger side of the vehicle. Detective Sampin saw two individuals inside the car and one was in the rear seat of the passenger side. Detective Sampin observed that individual pass a gun out of the open car window to defendant. Defendant took the gun, turned it around, pulled up his shirt, and tucked the gun into the waistband of his pants. Defendant continued to talk to the people in the car. At this point, Detective Sampin radioed his partner to come pick him up.

Detective Sampin broke his surveillance to get back into the car with his partner. Once in the car, Detective Sampin immediately told his partner that there was a gold vehicle around the corner and someone in the car passed a gun to a man standing outside. They went around the corner and saw the gold car in the same position and defendant was still standing next to it. Both officers exited the car. Detective Sampin started to approach defendant and asked him to "come here." Defendant looked at him and turned around. As Detective Sampin continued to approach, defendant started to run for the door of 2502 West Division. Detective Sampin ran after defendant to the door of 2502 West Division.

Detective Sampin described the door as having a metal frame with a window from top to bottom and a push bar in the center. Defendant got inside the door first. Defendant turned and tried to slam the door in Detective Sampin's face, but Detective Sampin was partially in the door. Defendant continued to push the door shut as Detective Sampin tried to push it open. Detective Sampin was pushing with one hand because he had his gun in his other hand. Officer Hartz ran up to help Detective Sampin. At first, defendant was pushing with one hand on the door while his other hand was on his waistband, but when Officer Hartz came to help, defendant began to push with both hands. Defendant then got the door to close. Detective Sampin then kicked the glass part of the door, and the window shattered. During the struggle at the door, Officer Hartz called out that there was a gun in defendant's pants.

Defendant began to run up the stairs. Detective Sampin ducked under the push bar and got inside the building. Both defendant and Detective Sampin stumbled up the stairs. When defendant was about halfway up the stairs, Detective Sampin saw defendant throw a gun to the side. Detective Sampin grabbed the gun and continued to pursue defendant. Detective Sampin stated that there was a short foot chase through the apartment onto the back porch. Defendant ended up in a dead end. When Detective Sampin got to the back porch, defendant was crawling on the couch to get behind or under it.

Detective Sampin stated that he knew defendant from the neighborhood, but had never arrested him before that date.

On cross-examination, Detective Sampin stated that he did not talk to anyone on the street regarding the call of shots fired because no one initiated contact, which is what normally happens. Detective Sampin said he did not see that anyone had been shot. Detective Sampin testified that he set up his surveillance so he could look west down Division, and he told his partner to take the marked police car out of sight. Detective Sampin said that he was in his surveillance position for 6 to 10 minutes before he saw defendant. Defense counsel asked Detective Sampin if a silver four-door Honda pulled up in...