People v. Zambrano

• Citation: 203 Ill.Dec. 961,266 Ill.App.3d 856,640 N.E.2d 1334
• Decision Date: 30 September 1994
• Docket Number: No. 1-92-1149,1-92-1149
• Parties: , 203 Ill.Dec. 961 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Augustine ZAMBRANO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1334

640 N.E.2d 1334

266 Ill.App.3d 856, 203 Ill.Dec. 961

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Augustine ZAMBRANO, Defendant-Appellant.

No. 1-92-1149.

Appellate Court of Illinois,

First District, Second Division.

Sept. 30, 1994.

Michael J. Pelletier, Deputy Defender, Kenneth L. Jones, Asst. Appellate Defender, Chicago, for appellant.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, James E. Fitzgerald, Janet C. Mahoney, of counsel) for appellee.

Presiding Justice DiVITO delivered the opinion of the court:

This is an appeal from an order of the circuit court dismissing without an evidentiary hearing defendant Augustine Zambrano's post-conviction petition challenging his convictions for attempted murder, armed violence, aggravated battery, and unlawful use of a weapon by a felon. For reasons that follow, we affirm.

Defendant was represented by attorney William Swano at a bench trial in October 1987. The evidence adduced was as follows. John Scott, the victim, testified that on December 21, 1986, he was "working the front door" at the Fire Alarm Lounge in Cicero, Illinois. He worked in a well-lit vestibule with two sets of doors. Patrons entered the vestibule through the outer doors approximately 15 feet from where Scott sat and checked patrons for valid identification. There was a large, well-lit canopy outside the vestibule.

At approximately 5:30 a.m. on that date, defendant and three other men, all of latino or hispanic origin, entered the vestibule. Defendant was the first man who came in, and he was wearing gold chains and a long, gray coat. The second man who came in was wearing a long, black coat, but Scott could not remember what the other two men were wearing. The first man who came in was approximately 5'9"' tall, had medium length hair, a mustache, and "a little hair down his chin."

Defendant approached Scott and produced a valid Illinois driver's license with a photograph. One of the other three men produced an invalid identification and the other two did not have any identification. Scott spoke to defendant from a distance of about two feet, telling him that his friends could not come in because they did not have proper identification. All four men then sat off to the side in a waiting area. Approximately five to eight minutes later, defendant walked up to Scott and asked whether he could let his friends in. Scott told defendant that he could come in, but his friends could not. During this conversation, Scott stood approximately two to three feet from defendant, and could see his face and features clearly.

At that point, "comments were being said," and Scott approached the men and told them they would have to leave. All four men then left the vestibule and stood outside under the canopy. The two men without identification were the first to leave the vestibule, and defendant was the last to leave. All four men stood outside under the canopy at a distance of four feet, while Scott stood in the doorway looking directly at them. Defendant was the third man from his right. Scott told the men to go home, turned to go inside, and then, "out of the corner of [his] eye[,]" saw the third man from his right run towards him holding a gun in his hand. That man shot Scott in the stomach, and all four men then fled.

Five days after the shooting, while in the hospital receiving medical treatment for his gunshot wound, Scott identified defendant from a photographic array as the man who shot him. Scott testified that there was "no doubt in [his] mind" that defendant shot him.

Walter Dzendzeluk testified that at approximately 5:30 a.m. on December 21, 1986, he was in the vestibule at the Fire Alarm Lounge. He had been to two other taverns that night, and between 10 p.m. and 5:30 a.m. had consumed approximately 12 beers. Dzendzeluk saw Scott standing in the doorway speaking to defendant. Defendant was standing just outside the doorway at that time, and was wearing a long, gray coat. Dzendzeluk, who is 6' tall, walked up behind Scott, who is 6'5"' tall, looked over his shoulder, and saw defendant's face clearly from a distance of approximately four feet. Dzendzeluk stood directly behind Scott one foot from the door for at most 60 seconds. He "heard a shot" that came "[f]rom the gentleman standing, facing the doorway." The man who shot Scott fled after the shooting.

Dzendzeluk identified defendant as the shooter at a police line-up that morning. He also identified defendant in court as the man who was standing outside the doorway facing him and also as the man who shot Scott.

Alex Torrez, a friend of defendant, testified on defendant's behalf. He went to the Fire Alarm Lounge at approximately 5:30 a.m. on December 21, 1986, carrying a .22 caliber handgun. He showed his identification card to Scott, but Scott told him he could not enter and called him a "spick." Scott then pushed him down onto the sidewalk, reached for something that Torrez thought was a gun or a knife, and then came at him. He got scared, pulled out his gun, shot Scott from a distance of about eight feet, and then ran away. At the time of the shooting, defendant was talking to someone off to the side to the left of the doors.

At the time of the trial, Torrez was 20 years old and had two criminal charges pending against him. He admitted he had never spoken with police about the incident at the Fire Alarm Lounge, but that he had discussed his testimony with defendant's lawyer and with another defense witness. On December 26, 1986, five days after the shooting, he had had defendant's lawyer transcribe a statement in which he admitted shooting Scott.

Erin Johnson testified that, on December 21, 1986, after she finished her eight and one-half hour shift as a waitress in a restaurant, she drove to the Fire Alarm Lounge with two men. One of those men was Brian Freeze, whose testimony was the subject of defendant's motion to reopen his case-in-chief, discussed below.

She arrived at the Fire Alarm Lounge between 4:30 and 5 a.m., and from a point about eight feet from the door and off to the side she saw an argument between three men, including defendant and Scott. She saw Torrez lift up his coat, and then heard a "pop." At the time she heard the "pop," Torrez had one hand in his pocket. Defendant was wearing a long, black coat at that time, and did not have a gun in his hand. After hearing the "pop," she saw Torrez turn and run away, and then she saw a "glare" that "appeared to be" a gun. On cross-examination, she admitted that she was not "exactly" sure that she saw a gun.

Johnson further testified that she spoke with defendant's investigator ten days after the shooting. The investigator showed her several photographs of the Fire Alarm Lounge, and one photograph of Alex Torrez. She admitted that she was never shown a photograph of defendant, and that she never viewed a line-up.

David Morrison also testified for the defense. He arrived at the Fire Alarm Lounge between 4 and 4:30 a.m. on December 21, 1986, after working as a bouncer at another tavern from 9 p.m. until 4 a.m. He drank three or four beers, and then entered the vestibule to buy cigarettes. There was a commotion at the door, approximately 10 to 15 feet from where he was standing. Morrison claimed he could see out the front door, even though Scott was standing in the doorway.

He heard a shot and saw defendant outside the doorway with his hands down by his side and wearing a black coat. He did not see a gun in defendant's hand. Although he claimed that defendant did not shoot Scott, he admitted on cross-examination that he did not see the shooting and did not know who shot Scott.

Finally, Gregory Gunter testified that on December 21, 1986, he was at the Fire Alarm Lounge and drank about six beers between midnight and 5:30 a.m. He spoke with defendant that night outside the Fire Alarm Lounge, while defendant's friends, including Torrez, were arguing with Scott. While he was talking to defendant, he heard a shot and then saw people running away. Defendant was wearing a long, black coat at the time of the shooting, and did not have a gun. Gunter was a friend of defendant, and had been convicted of auto theft and robbery.

Following closing arguments, defendant was found guilty by the circuit court of attempted murder, armed violence, aggravated battery, and unlawful use of a firearm by a felon. Subsequently, William Swano, defendant's trial counsel, filed a motion to reopen defendant's case-in-chief because he had located a witness, Brian Freeze, who had gone to the Fire Alarm Lounge with Erin Johnson at the time of the shooting. The court denied the motion because Swano had Freeze's name on the day the trial began, and Swano did not exercise due diligence in locating Freeze before the trial ended. The court also refused to allow Swano to call Freeze to present his testimony for the record, citing the lack of due diligence.

On December 4, 1987, Swano took Freeze's deposition. At that deposition, Freeze stated that he was "absolutely" sure defendant was not the shooter. Swano then filed a supplemental motion for a new trial, which included as grounds for error the circuit court's refusal to allow Freeze to testify on defendant's behalf. At the hearing on the motion on January 19, 1988, Swano read the deposition into the record. The motion was denied. The court noted that the deposition testimony was "cumulative, almost verbatim with Mr. Torrez' alleged confession." The judge also noted that he had looked in the telephone book and found the telephone number of Freeze's father.

The court heard arguments in aggravation and mitigation, and sentenced defendant to 20 years for attempted murder, 20 years for armed violence, 5 years for each count of aggravated battery, and 5 years for unlawful use of a firearm by a felon, the sentences to run concurrently.

Defendant appealed, again represented by Swano. He claimed that the...