People v. Bakr

869 N.E.2d 1010, 373 Ill. App. 3d 981, 312 Ill. Dec. 19, 2007 Ill. App. LEXIS 577
CourtAppellate Court of Illinois
DecidedJune 1, 2007
Docket1-05-0357 Rel
StatusPublished
Cited by16 cases

This text of 869 N.E.2d 1010 (People v. Bakr) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bakr, 869 N.E.2d 1010, 373 Ill. App. 3d 981, 312 Ill. Dec. 19, 2007 Ill. App. LEXIS 577 (Ill. Ct. App. 2007).

Opinion

JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial, defendant-appellant Jamal Bakr (defendant) was convicted of first degree murder and aggravated battery with a firearm and sentenced to consecutive 50- and 10-year prison terms. On appeal, defendant contends (1) that the trial court erred in admitting the videotaped statements of two codefendants as substantive evidence against defendant, and (2) that he was denied a fair trial due to the cumulative impact of instances of prosecutorial misconduct. For the reasons that follow, we affirm.

FACTS

On the evening of October 19, 2001, Elmercelo Rivera, Daniel Ortiz, Wanda Colon, Luis Colon, and Gene Colon were in the vicinity of 43rd Street and Ashland Avenue in Chicago, Illinois, to watch some drag races. The races took place every weekend during the summer, and the people who took part in them were known locally as “Racers.” On this particular evening, the races were broken up by police just after midnight. At this time, Elmercelo, Daniel, Wanda, Luis, and Gene left the area and went to a Dunkin Donuts shop in a strip mall on 43rd Street and Ashland where they ordered food.

The group was standing in the parking lot by Elmercelo’s car finishing their food when a blue Chevrolet Astro van drove by. The van was driven by Antonio Gomez, a member of the Almighty Latin Saints gang. Gomez was accompanied by fellow gang members Jesus Nevarez, Oscar Garcia, Jorge Melendez, and defendant. When the men saw Elmercelo, Daniel, Wanda, Luis and Gene in the parking lot, they assumed that they were Racers. This angered the men because they believed that one of their fellow gang members had recently been shot at by some Racers.

Defendant and his fellow gang members then drove to 44th and Marshfield, picked up a gun from another member of the Almighty Latin Saints gang, Armando Montelongo, and returned to the vicinity of the Dunkin Donuts. Garcia exited the van to see if the group of suspected Racers was still at the Dunkin Donuts. He waved back to defendant, indicating that they were. Defendant then exited the van, approached Elmercelo and his friends, fired three shots in their direction, and ran back to the van. The Saints then drove back to the alley by Montelongo’s house, where defendant told Montelongo that he had “shot a guy and saw him fall” and that he “thought he shot a second guy.”

Back at the Dunkin Donuts, Elmercelo found Daniel lying on the pavement. Daniel told Elmercelo that his back hurt and he could not move. Elmercelo also realized that his buttocks were burning and his pants were torn. Elmercelo grabbed Daniel, put him inside the car, and, in an effort to find the police, the group drove back to where the races had been. Two ambulances arrived on the scene and took Daniel and Elmercelo to Cook County Hospital. Daniel later died at the hospital due to a gunshot wound to the back. Elmercelo was treated for a gunshot wound to the buttocks.

The Chicago police department immediately began its investigation. The officers on the scene recovered three discharged 9-millimeter cartridge casings in the parking lot. They also interviewed Wanda, Elmercelo, Luis, and Gene. Based on their interviews, the Chicago police officers concluded that the suspected shooter was a white male, Hispanic, about 18 years of age, 5 feet 8 inches tall, with a medium build and light complexion and wearing a dark or black, hooded sweatshirt and dark or black jeans.

The Chicago police were unable to identify any suspects in the shooting until January 16, 2002, when Nevarez was arrested for engaging in three separate narcotics transactions with undercover Chicago police officers. Upon learning of the severity of the drugs charges he was facing, Nevarez told the Chicago police officers he had some information on the homicide in question. On the basis of this information, the Chicago police subsequently arrested defendant, Garcia, Melendez, and Montelongo.

The State jointly indicted defendant, Oscar Garcia, Jesus Nevarez, Jorge Melendez, and Armando Montelongo for, inter alia, first degree murder of Daniel Ortiz and aggravated battery with a firearm of Elmercelo Rivera. Prior to trial, Nevarez, Melendez, and Montelongo pled guilty to second degree murder and were sentenced to 12, 10, and 10 years, respectively. Defendant filed a motion to quash arrest and suppress his alleged oral inculpatory statements to Chicago police and any evidence of defendant being identified in a police lineup. The trial court denied the motion, finding that the Chicago police had probable cause to arrest defendant in light of Nevarez’s statements to the police, in which he implicated defendant in the shootings. Defendant and Garcia were set for a double jury trial, but Garcia did not appear for trial on the day testimony was to commence. The trial court issued a bond forfeiture warrant for Garcia and proceeded with defendant’s jury trial.

The State’s first witness was Mayra Ortiz, mother of both Daniel Ortiz and Elmercelo Rivera. During her testimony, Mayra stated that Daniel was “developmentally disabled.” The prosecutor asked what that term meant, and defense counsel objected. The objection was sustained. After Mayra’s testimony, defense counsel made a motion for mistrial based on her testimony, stating that the prosecution had asked certain questions in an attempt to invoke sympathy for the victim. The trial court denied the motion for mistrial and promised to instruct the jurors not to be swayed by either sympathy or prejudice.

The State proceeded with its case by calling a number of witnesses, including Luis Colon, who identified defendant as the shooter from that night, and Detective Anthony Powell, who testified that defendant told him that he shot “in the direction of’ the victims that night. The State also called several of the codefendants who had previously offered evidence to Chicago police implicating defendant in the shooting. Among the codefendants was Nevarez, who testified that he remembered neither his conversations with the Chicago police officers at the station upon his arrest nor his statements in several portions of the videotaped interview he had with the Chicago police officers.

During Nevarez’s testimony, defense counsel objected and requested a sidebar. Defense counsel argued that the nature of Nevarez’s testimony rendered him essentially unavailable for cross-examination and that allowing the prosecution to introduce his video statement violated the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The trial court concluded that Crawford was inapplicable and decided that the videotape would be admissible under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 10.1 (West 2004)). Subsequently, Nevarez’s attorney testified that Navarez had sworn that the facts in his videotaped statement were true and that he had gone over a copy of a transcript of the video statement with his client prior to Nevarez accepting the plea. The State then authenticated the videotape through the detective who conducted the interview of Nevarez, and the tape was played for the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
869 N.E.2d 1010, 373 Ill. App. 3d 981, 312 Ill. Dec. 19, 2007 Ill. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bakr-illappct-2007.