People v. Abrego

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People v. Abrego

State: Illinois

Court: 1st District Appellate

Docket No: 1-04-3259 Rel

Case Date: 03/07/2007

Preview:THIRD DIVISION March 7, 2007

No. 1-04-3259

THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee, v. ERUBY ABREGO, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County

No. 99 CR 9739 (02)

Honorable Kenneth J. Wadas, Judge Presiding.

JUSTICE KARNEZIS delivered the opinion of the court: Following a jury trial, defendant Eruby Abrego was found guilty of first degree murder and aggravated battery with a firearm and was sentenced to consecutive prison terms of 60 and 30 years', respectively. On appeal, defendant contends: (1) the trial court abused its discretion by excluding certain hearsay testimony that an individual other than defendant had confessed to the shooting; (2) the trial court erred by

1-04-3259 improperly responding to a note the jury sent to the court during deliberations; (3) the trial court abused its discretion by admitting "gruesome" photographs of the victim; (4) his sentence was excessive; and (5) the compulsory extraction and perpetual storing of his DNA is unconstitutional. BACKGROUND Defendant's conviction was the result of an ongoing conflict between the Insane Orchestra Albany and the Latin Kings street gangs. The jury found defendant guilty of shooting Jose Garcia and Julio Lugo. Garcia died as a result of his injuries. On March 22, 1999, at about 5:30 or 5:45 p.m., defendant was riding in a car with several individuals who belonged to the Insane Orchestra Albany gang. They drove to the area of Belmont Avenue and Monticello Avenue where they saw another car with members of the Latin Kings' gang. They flashed gang signs at the Latin Kings, "threw down" the Latin Kings sign and threw a bottle at their car. The car with the Latin Kings drove around the corner, and Julio Lugo and his 11-year-old cousin, Isidro Quinones, exited the car. Lugo and Quinones were walking toward a grocery store when they stopped to talk to Ramon Torres and Jose Garcia, who were sitting in a nearby car. As they were talking, defendant approached the group on foot and began shooting, hitting Garcia and Lugo. Defendant then fled. Subsequently, defendant was arrested and identified in a lineup by Torres and Quinones as the shooter. Defendant also signed a court-reported statement admitting he was the shooter, which was introduced into evidence at trial. The gun used in the

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1-04-3259 shooting was recovered from a fellow gang member's home. ANALYSIS Defendant first contends that the trial court abused its discretion by excluding certain hearsay testimony that an individual other than defendant had confessed to the shooting. Prior to trial, defendant filed a motion pursuant to Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), to admit statements made by Jason Rodriguez to his girlfriend, Elizabeth Montalvo, that Rodriguez was involved in the shooting. The court held a hearing on the matter. At the hearing, Montalvo testified that on March 22, 1999, she had been living with Rodriguez for about six months. They also have a child together. On that night, Rodriguez told Montalvo that he had to take care of something or had to prove something and asked her to get his black "hoody." Rodriguez left and returned about four hours later. Montalvo stated that when Rodriguez returned, he appeared very nervous and closed the window blinds. She asked him what was wrong, but he did not answer. A couple of days later, Rodriguez's friend came to the house and told Rodriguez that he needed to hide. Montalvo stated that she would not let Rodriguez leave until he told her what was "going on." Rodriguez told her that the reason he had to hide was because he shot a Latin King. He said that he was on Belmont Avenue, by himself, when he got out of his car and approached some individuals. He heard one of them say in Spanish "watch that black guy." He approached the group, looked one of them in the eye and shot at them. He said that he shot two people. Montalvo stated

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1-04-3259 that she was not sure where on Belmont Avenue the shooting occurred but guessed it was around Belmont Avenue and Central Park. Montalvo stated that after a few days, Rodriguez returned and told her that everything was all right because someone else had been charged with the shooting. Montalvo further stated that after she and Rodriguez broke up, he stalked her and beat her and told her not to tell anyone what he had told her. Montalvo described Rodriguez as about 5 feet 11 inches to 6 feet tall and dark complected with a heavy build. On cross-examination, Montalvo stated that Rodriguez left the house on the night of the shooting at about 6:30 or 7:30 p.m. When Rodriguez returned, he was wearing a T-shirt, blue jeans and white gym shoes. Nicasio Santiago testified that on March 22, 1999, in the afternoon or early evening, he was riding in a car with Jason Rodriguez in the Logan Square neighborhood. According to Santiago, defendant was not with them. Santiago and Rodriguez exited the car and saw a group of Latin Kings around Belmont Avenue and Monticello Avenue. They exchanged gang signs with the Latin Kings and threw bottles at their car. He and Rodriguez walked around the corner and saw the Latin Kings' car. Rodriguez approached the car and the individuals standing near the car and started shooting at them. He and Rodriguez then fled. Santiago described Rodriguez as about 5 feet 9 inches tall. On cross-examination, Santiago acknowledged that he had signed a statement written by an assistant State's Attorney, but stated that the statement was untrue and the result of police brutality. According to the statement, he did not implicate Rodriguez in the shooting.

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1-04-3259 Julio Lugo testified that the shooter was dark complected, was shorter than 5 feet 8 inches or 5 feet 9 inches and was wearing a dark-colored jogging suit. He also described the shooter as "caramel complected." Detective Guevara testified that he and his partner interviewed Lugo after the shooting and Lugo described the shooter as a Hispanic male in his twenties, 5 feet 8 inches to 5 feet 10 inches tall, weighing about 200 pounds, and wearing a dark-colored jogging suit. Officer Thesedosia Jaks testified that she wrote a police report from an interview with Ramon Torres and Julio Lugo. The report indicated that the shooter had been described as a dark Hispanic male, 5 feet 7 inches tall, weighing 200 pounds, and wearing a brown sweatsuit with a hoody. Officer Eduardo Rios testified that he obtained a description of the shooter as a Hispanic male with a black jacket and black hoody. Detective Raymond Schalk testified that he interviewed Isidro Quinones, who described the shooter as a Hispanic male, 18 to 22 years old, 5 feet 9 inches tall, black hair, dark complected, and wearing a black hoody and black jacket. The parties stipulated that if Detective Robert Smith would testify, he would state that he interviewed Ramon Torres, who described the shooter as a dark Hispanic male, 19 to 20 years old, about 6 feet tall, 180 pounds, with black hair and wearing a black, zipped jacket with a hoody, and dark jeans and white tennis shoes. The parties further stipulated that a photograph of Jason Rodriguez from the

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1-04-3259 Chicago police department dated September 16, 1999, indicated that Rodriguez was a black Hispanic male, 5 feet 7 inches tall, weighing 150 pounds, with brown eyes, black hair and a dark complexion. Following the hearing, the court analyzed the four factors the United States Supreme Court set forth in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, to determine whether Montalvo's testimony was admissible. With regard to the first factor, whether the confession was made spontaneously to a close acquaintance shortly after the crime occurred, the trial court found that there was no question that there was a close relationship between Montalvo and Rodriguez. The court stated however, that because Rodriguez's statement was made two days after the crime occurred, it did not seem spontaneous. With respect to the second factor, whether the confession was corroborated by some other evidence, the court found that there was not sufficient independent corroboration to the statement. The court stated that Santiago's testimony was not credible and noted that Santiago was "one of the most disreputable individuals that has ever testified in this courtroom. On a credibility assessment scale of one to ten, his falls somewhere around zero." The court also stated that Rodriguez's statement was vague, and although it seemed to be an admission to a shooting, it did not necessarily refer to this shooting. The court further stated that the description of the shooter as "dark complected" was vague,

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1-04-3259 because it could mean different things to different people. With respect to the third factor, whether the confession was self-incriminating and against the declarant's interests, the trial court found that Rodriguez's statement was against his penal interests. With respect to the fourth factor, whether the declarant was available for crossexamination, the trial court found that the factor was not satisfied. The court noted in concluding that factor one was only marginally met, factor two was not met, factor three was met, and factor four was not met. The court further stated that there was not a sufficient indicia of reliability regarding the statement from Rodriguez to Montalvo that would make it reliable to give a jury an opportunity to assess it and assess Montalvo's credibility. In Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, the United States Supreme Court found that hearsay statements that satisfy the following factors may be admissible at trial. The factors a court must consider are whether (1) the confession was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the confession was corroborated by some other evidence; (3) the confession was self-incriminating and against the declarant's interests; and (4) the declarant was available for cross-examination. Chambers, 410 U.S. at 300-01; 35 L. Ed. 2d at 312, 93 S. Ct. At 1048-49. These factors are "merely guidelines to admissibility rather than hard and fast requirements." People v. Tenney, 205 Ill. 2d 411, 435 (2002). "[T]he presence of all four factors is not a condition of admissibility."

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1-04-3259 Tenney, 205 Ill. 2d at 435. Rather, the question to consider is "whether the declaration was made under circumstances that provide 'considerable assurance' of its reliability by objective indicia of trustworthiness." People v. Bowel, 111 Ill. 2d 58, 67 (1986). "The admission of evidence is within the sound discretion of the trial court, and its ruling will not be reversed" absent an abuse of discretion. Tenney, 205 Ill. 2d at 436. Here, as the trial court found, we agree that Rodriguez's statement to Montalvo was made to a close acquaintance. We also agree with the trial court that the statement was not exactly spontaneous. Rodriguez's statement was made in response to Montalvo's questions and Montalvo's insistence that he tell her what was "going on" before he went to "hide out." Defendant relies on People v. Tenney, 205 Ill. 2d 411 (2002), in which our supreme court determined that the declarant's statement could be considered spontaneous even though it was in response to his girlfriend's "demand" for an explanation. The court determined that merely because the declarant's girlfriend asked the declarant "what was going on," that "single, simple question did not rob [the declarant's] statement of spontaneity." Tenney, 205 Ill. 2d at 439. The court then distinguished the case from People v. Hampton, 249 Ill. App. 3d 329 (1993), where the hearsay statement was found to be inadmissible because it was made in response to "comments and pointed questioning." Tenney, 205 Ill. 2d at 439. We find that Montalvo's questioning of Rodriguez was more akin to the facts in Hampton than in Tenney. Montalvo stated that she would not let Rodriguez leave until he told her what was "going on." Montalvo's demand that Rodriguez provide her with an explanation

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1-04-3259 was more than just a single, simple question. It was similar to the comments and pointed questioning in Hampton, in which the declarant's response was not considered spontaneous. Defendant questions the viability of the Hampton decision, alleging that it was overturned by the federal court. The defendant Hampton filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

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