The People Of The State Of Ill. v. Gabriel

• Citation: 398 Ill.App.3d 332,924 N.E.2d 1133,338 Ill.Dec. 607
• Decision Date: 27 January 2010
• Docket Number: No. 1-07-2231.,1-07-2231.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Hermiz GABRIEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 332
924 N.E.2d 1133
338 Ill.Dec. 607

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Hermiz GABRIEL, Defendant-Appellant.

No. 1-07-2231.

Appellate Court of Illinois,
First District, Third Division.

Jan. 27, 2010.

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Michael J. Pelletier, State Appellate Defender (Deputy Defender Patricia Unsinn and Assistant Appellate Defender Jessica D. Thomlinson, of counsel), Law Office of William P. Murphy, Chicago (William P. Murphy, of counsel) and Ridley, McGreevy & Weisz, P.C. (Kristen M. Frost, of counsel), for Appellant.

Anita Alvarez, State's Attorney of Cook County (Assistant State's Attorneys James E. Fitzgerald, Eve Reilly and Robert E. Foss, Jr., of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

Following a bench trial, defendant was found guilty of aggravated battery with a firearm based on an accountability theory and sentenced to seven years in prison. On appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm where the identification testimony was unreliable and defendant presented three alibi witnesses; (2) the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm based on an accountability theory; (3) trial counsel was ineffective by failing to file a motion to sever his bench trial from the jury trial of codefendant Arnold Castillo, failing to challenge the admissibility of the eyewitness identification testimony, and failing to investigate and impeach the States' witnesses; and (4) the circuit court erred in denying his motion for a new trial based on newly discovered evidence. For the following reasons, we affirm.

BACKGROUND

At trial, Candido Moreno testified that on September 14, 2004, Luis and Juan Villalobos picked him up at his home to show him new rims that Juan bought for his black Denali truck. Candido testified that they drove to the home of Luis and Juan's mother, located at 6331 North Rockwell Street in Chicago, Illinois. Candido testified that Juan drove his truck, while Candido sat in the front passenger seat and Luis sat in the backseat behind Juan. Candido testified that they stopped along the way to purchase a six-pack of beer. Candido and Luis each drank two beers in the truck while Juan drove and did not drink any beer.

At about 9:45 p.m., Candido testified that they approached the intersection of Rosemont and Fairfield Avenues, which was two blocks from their destination. Candido testified that as the truck approached the stop sign at the intersection, he saw a group of 15 to 20 individuals. The group surrounded the truck, flashed gang signs, and yelled “King love.” Candido testified that Luis argued with codefendant Arnold, who flashed a tattoo on the left side of his neck. Candido also observed defendant standing on the passenger side of the truck and saw defendant pull a gun halfway out of his left pocket. Candido told Luis that they should leave and Juan drove them to his mother's house, where they parked the truck in the alley. Candido testified that he saw a police car parked in front of the house and police officers talking to neighbors, so they parked the Denali behind the gangway of the neighbor's house to see what was happening. Once they were parked, Candido

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talked with Luis outside the truck, while Juan remained in the driver's seat of the truck. Candido heard a “popping” sound and felt a sting on his hand. Candido ran to the gangway of Juan's mother's house, but after finding it locked, Candido ran through the garage then up the stairs into the residence. Candido then noticed that he had been shot in both of his legs, behind his knees.

Several days later, on September 17, 2004, police officers visited Candido at his home and showed him a photographic array. Candido identified defendant as the individual whom he saw on the street showing his gun. On September 24, 2004, Candido was driving with Luis and Juan in Juan's truck. They were driving to the police station to view a lineup when Luis called the police after seeing codefendant Arnold near the stop sign of Rosemont and Western Avenues. They flagged down a police car and Arnold was taken into custody. At the police station, Candido identified defendant in the lineup.

Luis Villalobos testified to a similar version of events. Luis testified that when the group surrounded Juan's truck at the stop sign, he argued with codefendant Arnold, who said he was a Latin King gang member and flashed a tattoo on the left side of his neck. Luis testified that he was not a gang member and he told codefendant that he did not “want no problems with anybody.” Luis gave codefendant the middle finger and told him to “go f---himself.” Luis also saw defendant standing on the right side of the truck, flashing a gun by pulling it out of his pocket. Luis told Juan that they should leave and Juan drove around the block of their parent's home because they saw a police car parked in front. Juan parked in the alley behind their parent's house. Luis and Candido got out of the truck and were talking when Luis heard “pops” from behind him and felt a sting in his buttocks. Luis turned around and saw codefendant shooting a gun with one arm over the fence gate of a gangway. Luis ran through his parents' garage and went upstairs to his brother's apartment, where he called the police. Luis testified that the shooting occurred at about 10 p.m. and there was a bright alley light on next to Juan on the driver's side of the truck.

On September 17, 2004, Luis spoke with police officers at his parents' home and viewed a photographic array. Luis identified defendant as the individual who flashed the gun at the stop sign at Rosemont and Fairfield Avenues. Luis testified that he did not identify codefendant in the photographic array because codefendant's photo looked different than his appearance on the day of the shooting. Luis testified that on September 24, 2004, he drove with Juan and Candido to the police station to view a lineup. On the way to the police station, Luis saw an individual near Rosemont and Western Avenues and told his brother, “Look at the guy over there. That's the guy right there that shot us.” Luis identified codefendant as that person in court. Luis testified that they flagged down a police officer then proceeded to the police station. Luis testified that he viewed a lineup and identified defendant as the individual who flashed the gun at the stop sign. Luis viewed a second lineup, in which he identified codefendant as the individual who shot him in the alley.

Juan Villalobos testified to the same version of events. Juan testified that when he stopped at the corner, he saw defendant from about 10 feet away pull a gun more than halfway out of his pants. Juan also heard codefendant yell, “LK, King Love, what you guys be about” and saw codefendant pull down the collar on the left side of his shirt to show a tattoo. Juan testified

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that he was not in a gang and that his brother cursed at codefendant. Juan then drove to the alley behind his parents' house and parked his Denali in the alley. Juan remained in the driver's seat of the truck with the windows down and was talking to Luis and Candido, who were standing outside the truck. Juan then heard loud noises and saw Luis and Candido run. Juan saw codefendant shooting a gun over the fence of a gangway. Juan testified that he saw defendant standing behind codefendant near the back corner of the garage. Juan testified that defendant pointed a gun in the direction of the truck, but Juan never saw him fire the gun. Juan testified that he could see defendant because codefendant ran by defendant and activated sensor lights. Juan also testified that there were alley lights on. Juan testified that defendant also fled, “like walking running [at] the same time.” Juan testified that as defendant started to leave, he continued to point the gun in Juan's direction. Juan testified that he observed defendant from about 20 feet away. After defendant and codefendant fled, Juan exited his truck and noticed blood when he ran into the garage. Juan testified that he was nervous during the incident and did not know what happened to Luis and Candido. When he returned to his truck later, he observed that there were bullet holes in it. Juan denied telling police officers at the scene that the offenders had chased him down a gangway prior to shooting at him.

Juan testified that on September 24, 2004, he drove with Luis and Candido to the police station to view a lineup. While driving to the police station, Luis saw codefendant walking and notified a police officer. At the police station, Juan identified defendant in a lineup as the second individual who was holding a gun at the time of the shooting. Juan testified that he told the police that defendant was “the guy that was at the scene holding the second gun that was pointing towards me.” Defendant also stated to police, “That's the other guy that I seen perfectly.” During a second lineup, Juan identified codefendant as the individual that shot at him. Juan acknowledged that he was on probation for a felony conviction for possession of a handgun.

Chicago police officer Michael Seiser testified that he and his partner were the second police car to arrive at the scene of the shooting, at about 10 p.m. Officer Seiser testified that a woman at the scene provided a description of the possible shooters and informed him that two Assyrian or Hispanic men had fled southbound on Rockwell Street in a small gold car, possibly a Toyota. Juan informed Officer Seiser that two offenders pulled up on the scene in a small gold car, ran out, chased him through a gangway at 6331 Rockwell Street, and fired shots at the victims. Officer Seiser...