2020 IL App (1st) 152319-U-B
SIXTH DIVISION MARCH 27, 2020
No. 1-15-2319
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 10642 ) JOSHUA ENRIQUEZ, ) Honorable ) Neera Walsh and Defendant-Appellant. ) Joseph M. Claps, ) Judges Presiding. ______________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Justices Connors and Delort concurred in the judgment.
ORDER
¶1 Held: Following the supreme court’s decision in People v. Eubanks, 2019 IL 123525, the defendant-appellant’s first degree murder conviction is affirmed over his challenge to the trial court’s refusal to give a reckless homicide instruction.
¶2 This case returns to us following a supervisory order from the supreme court directing us
to vacate our judgment in People v. Enriquez, 2018 IL App (1st) 152319-U, and reconsider, in
light of People v. Eubanks, 2019 IL 123525, whether the trial court abused its discretion in 1-15-2319-B
declining to instruct the jury on the offense of reckless homicide. For the reasons that follow, we
again affirm defendant-appellant Joshua Enriquez’s convictions.
¶3 BACKGROUND
¶4 On the morning of May 3, 2009, the defendant’s Jeep Cherokee SUV (the SUV) struck a
car containing four people: Gabriella Almanza, Nicole Mijares, Maria Ortega, and Karina Paredes,
the defendant’s ex-girlfriend. Almanza and Mijares were killed in the incident, and Ortega and
Paredes were injured.
¶5 The defendant was charged with multiple counts of murder, attempted first degree murder,
and aggravated battery. The State proceeded to trial only on the murder and aggravated battery
counts. We set forth the facts in detail in our previous order and repeat only those necessary to
resolve the current issue on appeal.
¶6 At a jury trial, the State called several witnesses to the May 3 crash. Shema Harris, a CTA
bus operator, testified that in the early morning hours of May 3, 2009, she was driving home on
Kedzie Avenue following the end of her shift when she saw a “little dark car” behind her, and an
SUV behind the car. She recalled the SUV was “speeding” and “zigzagging across the road,”
“going from lane to lane.” Harris “looked back in the mirror, and I saw the truck hit the car, and
the car flipped and rammed up into the park.” She saw that the SUV “flipped over.”
¶7 Brittany Berman and Megan Lorang also witnessed the aftermath of the crash. Lorang
lived at 1010 North Kedzie Avenue and Brittany was spending the night there on May 3. Berman
was asleep on the couch near a window when she was awakened by “an extremely loud,
unbelievably long crash.” She went to the window and saw an SUV “on its roof, and it was rocking
as if it had just landed.” She told her friend to call 911. She then went onto the balcony and saw
a man, whom she identified as the defendant, emerge from the driver’s side of the SUV and stand
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up. She asked him “if he was okay” but he did not respond at first. She saw him start to “pace a
little bit.” After she asked a second time if he was okay, the defendant responded “yeah.” She
asked the defendant if there was anyone else in the vehicle, and he said “no.”
¶8 Berman looked across the street into the park and saw “the other car that had hit the tree.”
The car was “smoking” and “completely crushed.” When she looked back toward the street, she
no longer saw the defendant. She subsequently identified the defendant in a police lineup.
¶9 Lorang testified that she heard a loud crash and Berman screaming. After speaking to
Berman, she went on the balcony and “saw an SUV turned over in front of the apartment” that was
“completely upside down.” Lorang “saw a man outside the SUV walking around,” whom she
identified as the defendant, as well as “several smashed cars along the road.” Across the street, in
the park, she saw “another car smashed against a tree.” She recalled the defendant “looked a little
disoriented” and was “walking around the car.”
¶ 10 Chris Garcia, who lived at 1138 North Kedzie, testified that he woke up at approximately
5:45 a.m. on the date of the incident to let his dog outside. As he was standing in his hallway, he
saw two vehicles pass, a small car and an SUV. The vehicles were close, “bumper to fender.” He
recalled that he “saw two vehicles together. I saw smoke and it smelled like rubber.” After the
vehicles passed, he heard a crash.
¶ 11 Detective Wayne Rashke testified that he investigated the scene of the collision on the
morning of May 3, 2009. He described the relative positions of the vehicles at the scene, as well
as skid marks. Detective Rashke confirmed that the People’s Exhibits 17 through 44 were
photographs taken of the scene. He described the photographs, which showed that the defendant’s
SUV was on its roof and that the smaller car, a black Pontiac, had traveled into the park and struck
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two trees. The passenger’s side of the car was severely damaged, and the vehicle’s airbags had
deployed.
¶ 12 The State then called Maria Ortega, one of the victims of the crash. Ortega testified that in
the early morning of May 3, 2009, she drove her sister, Gabriella Almanza, and their friends,
Nicole Mijares and Karina Paredes toward the Humboldt Park area. Ortega’s car was a Pontiac
Grand Am. The four friends stopped at a Citgo gas station on the corner of Kedzie Avenue and
North Avenue and Ortega exited the car to make a purchase in the gas station. Upon exiting, she
noticed the defendant’s truck pull into the station. Ortega stated that she knew the defendant “from
the neighborhood that we grew up on” and knew that he was Paredes’ ex-boyfriend. Ortega saw
that the defendant’s current girlfriend was with him, in the passenger’s seat of the defendant’s
vehicle.
¶ 13 Ortega testified that, after she left the gas station, she and her friends drove to another
location, where she purchased marijuana. A short time later, Ortega was driving north on Albany
Avenue, a one-way street, when she saw the defendant’s vehicle “double-parked” in the street, and
the defendant was standing next to his SUV. She saw the defendant’s girlfriend “on the sidewalk.”
Ortega testified that she “slowed down and I drove around” the defendant and his vehicle. She
then looked in her rearview mirror and saw the defendant get into his vehicle. Ortega turned west
onto Bloomingdale Avenue, and then turned south onto Kedzie. The defendant followed her.
¶ 14 As her car approached the intersection of Kedzie and North Avenue, her car was hit from
behind by the defendant’s SUV; Ortega recalled there was “a hard impact and we jolted a bit
forward.” As Ortega continued to drive south on Kedzie, the defendant’s SUV “came again and
it pushed my car through the red light on North Avenue.” Ortega noticed “some rattling in the
back” of her car. She recalled that she was “trying to accelerate” but her car did not respond. She
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testified that the defendant “kept hitting my car” from behind. Asked how many times, she
answered “more than four.”
¶ 15 Ortega recalled that her “car started to smoke and I started to think before I would hit
another intersection light that I would try to get away from him.” She testified that she “turned
[the] steering wheel to the left to try to turn in the park entrance.” Ortega’s next memory was
waking up in the hospital. Describing her injuries, Ortega testified she had “50-something stitches
on the left side of my face,” received a cast on her twisted left ankle, and had surgery on her right
foot.
¶ 16 The State also called Paredes, the defendant’s ex-girlfriend, to testify. Paredes testified
that she began dating the defendant in the summer of 2007 and he was jealous and controlling. At
different times during their relationship, the defendant shot her, stabbed her, and choked her. She
eventually ended the relationship in late 2008.
¶ 17 Paredes testified that she was in the car with Ortega, Almanza, and Mijares on May 3.
Paredes saw the defendant drive into the gas station while Ortega was making a purchase. The
defendant’s new girlfriend was in the passenger’s seat. Paredes recalled that the defendant “looked
into [Ortega’s] car” after which he “kept driving” and left the gas station.
¶ 18 As Ortega drove on Albany Avenue back to her house, Paredes saw the defendant “in the
middle of the street.” Paredes testified that Ortega drove around the defendant without speaking
to him. After Ortega’s car passed, Paredes looked back and saw the defendant getting into his
vehicle. She recalled that “when I looked back again *** he is already speeding up so that I told
[Ortega] to drive faster.” Paredes recalled that, as Ortega was driving on Kedzie Avenue, the
defendant’s “truck hit our rear end.” She testified that “the impact was hard” and Ortega’s car
“started smoking.” Paredes stated that “it sounded like the wheel was going to come off.”
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¶ 19 Paredes testified that the defendant “kept hitting us from the back,” striking Ortega’s car
“over five times.” Asked about the last time Ortega’s car was hit, Paredes said “I just remember
bracing myself and that was it.” The next thing she remembered was waking up at the hospital.
Paredes suffered a fractured pelvis, wrist and arm.
¶ 20 On cross-examination, Paredes acknowledged that after the defendant shot her, she told the
hospital that she was shot in a drive-by shooting. She admitted that she did not make a police
report for either the stabbing or choking incident. Paredes also acknowledged that she had an
argument with the defendant’s new girlfriend “a couple weeks before” the May 3, 2009 collision.
¶ 21 The State introduced evidence that following the collision, the defendant reported his car
stolen while giving a fake name to the police. The defendant was finally apprehended on May 8,
2009, hiding in a closet of a residence.
¶ 22 After the State rested, the defendant testified. He acknowledged that he and Paredes began
dating in the spring of 2007. He testified that their relationship was “kind of rocky” because he
“did a lot of cheating,” which upset Paredes. However, the defendant denied that he ever hit, shot,
or stabbed Paredes.
¶ 23 As of May 3, 2009, the defendant had another girlfriend, Monique. According to the
defendant, Paredes was not happy about his relationship with Monique. He testified that he “was
still messing around with” Paredes after he began dating Monique. He stated that he had sex with
Paredes in December 2008, and “around January” Paredes told him that she was pregnant. The
defendant stated that Paredes did not have the baby. Asked if he tried to “work things out” with
Paredes after she became pregnant, the defendant said that he told Paredes that it was not a “good
idea for us to get back together” because of his relationship with Monique. The defendant testified
that Paredes “kind of got mad at the fact that I didn’t want to get back with her.”
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¶ 24 The defendant recalled that, on the evening of May 2, 2009, he was with Monique and
several of her friends drinking alcohol. Asked how much he drank, the defendant said he “lost
count at like the second fifth” of alcohol. The group began at a bar, and then continued drinking
in a park. After leaving the park, they “rode around most of the night, talking.”
¶ 25 In the early hours of May 3, 2009, the defendant drove to the Citgo gas station “[t]o get
Monique something to drink.” He did not go into the store, however, because he saw Paredes and
Ortega. He stated that he “knew there was going to be problems” if he went into the store, and
was concerned about “Monique and the girls having a fight.” The defendant testified that “[a]s
soon as I pulled in, I pulled right back out” of the gas station.
¶ 26 He then drove to Albany Avenue, where Monique’s car was parked. There, he exited his
vehicle to retrieve a “hoodie” that he had left in her car. He “start[ed] having a conversation with
Monique.” As they talked, he noticed that Monique looked “pas[t] my shoulder,” after which he
turned and saw Ortega’s car approaching. He stated: “As I was trying to get into my car, [Ortega]
hit me on the side of my -- well on the back of my body.” Asked to clarify, he said that Ortega
“passed by me and hit me” with her car.
¶ 27 The defendant then “jumped in [his] car and tried to follow them.” He did so “[b]ecause I
wanted to know why she hit me,” as he felt “upset and confused” that she had struck him. He
followed Ortega’s car when it turned onto Bloomingdale Avenue. He recalled that, as he made
the turn, “I took my eyes off the road for a split second to pick up my phone on the floor” and
“[b]y the time I looked up, I hit her on the back of the car.”
¶ 28 He then recalled that Ortega “pushed on the gas and turned [south] on Kedzie, so I just
continued to follow her.” He recalled that “[s]moke was coming from the back of her car” and he
“continued to chase her to try to stop her.” He maintained that he did so “because I wanted to
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know why she hit me.” The defendant admitted that he “bumped her again” near the intersection
of Kedzie and Wabansia Avenue. When his counsel asked why, he answered “I don’t know.” He
then stated “I remember bumping her again” near the intersection of Kedzie and North Avenue.
¶ 29 The defendant further testified that “I switched to the opposite lane trying to get her
attention.” He stated that he tried to beep his horn “but my horn wasn’t working.” He “was trying
to get on the side of her” but “[s]he kept on speeding up.” He acknowledged that he was “going
the wrong way” when he switched lanes. He “continued trying to chase her” down Kedzie Avenue,
recalling that “she kept on switching lanes” and “wouldn’t let me get on the side of her.”
¶ 30 He stated that he was “trying to get her attention to pull over” when he “noticed that cars
[were] coming down Division [Street.]” At that point he “let go of the gas and tried to pump my
leg on the brake to slow down.” He saw Ortega go through a red light, and he “[s]tepped on the
gas to try to catch up back to her.” He again “came up on the side of her” and Ortega’s car “jumped
in front of me.” He testified: “I think she was trying to get into the little side street right there to
the park.” The defendant stated that he “tried to jump out her way to get into the next lane, but by
that time it was already too late.” His vehicle “came in contact with the car” and he “flipp[ed] in
the air.”
¶ 31 The defendant “woke up hanging upside down” in his vehicle. He crawled out of his
vehicle and felt “dazed.” He stated that he did not see Ortega’s car. At the conclusion of his direct
examination, his counsel asked: “Did you mean to hurt, kill those girls?” The defendant answered:
“No.”
¶ 32 On cross-examination, the prosecutor asked: “You didn’t have any trouble controlling that
car from all this drinking that you were doing, did you?” He answered: “No, sir.”
¶ 33 The defendant acknowledged that he did not ask for help for the women in Ortega’s car.
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He testified that he “thought they got away” and did not see their car after the collision. When the
prosecutor asked why he left the scene, the defendant answered: “I just finished hitting those
parked cars. I was drunk. I didn’t have no license. Just a quick reaction I guess.”
¶ 34 When asked “how many times did you strike the back of that vehicle,” he testified: “I’d
say I strike once, bump about two, three” times. He maintained that he did so “to get her attention”
to “pull over” to talk to him. He stated that, at one point he “made eye contact” with Almanza and
her “body language was telling me she is reaching over to Maria [Ortega] and *** telling her to
pull over.” The defendant admitted that he pursued Ortega’s car for over a mile before the
collision.
¶ 35 During closing argument, the State urged that the evidence, including the defendant’s prior
acts of violence against Paredes, showed that the defendant acted purposefully in causing the fatal
collision. Defense counsel argued to the jury that the defendant was intoxicated and “wasn’t
thinking clearly” at the time of the incident, but that he had no intent to hurt or kill anyone when
he “bumped” Ortega’s car.
¶ 36 The jury found the defendant guilty of two counts of first degree murder and two counts of
aggravated battery. The trial court entered judgment on the verdicts.
¶ 37 The trial court denied the defendant’s posttrial motion and his motion to reconsider. The
court ultimately sentenced the defendant to natural life imprisonment for the first degree murder
convictions and concurrent 10-year extended-term sentences for the aggravated battery
convictions.
¶ 38 The defendant timely appealed on July 14, 2015. On appeal, he contended that he was
entitled to a new trial because (1) the trial court declined to instruct the jury on the lesser offense
of reckless homicide; (2) the trial court declined his request for voir dire questions on the subject
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of domestic violence; and (3) he was prejudiced by prosecutorial misconduct.
¶ 39 In our order of June 8, 2018, we rejected the defendant’s claims of error and affirmed his
convictions. People v. Enriquez, 2018 IL App (1st) 152319-U. The defendant appealed to the
supreme court, which issued a supervisory order dated March 4, 2020. The court directed us to
reconsider our judgment in light of People v. Eubanks, 2019 IL 123525, which had been decided
in the interim and in which the court considered whether the trial court had abused its discretion
in denying a jury instruction for reckless homicide following a traffic accident.
¶ 40 ANALYSIS
¶ 41 The principles of law that govern the giving of a lesser-included offense instruction remain
the same post-Eubanks, and we repeat them here. Specifically, the “appropriate standard of
determining whether a defendant is entitled to a jury instruction on a lesser-included offense is
whether there is some evidence in the record that, if believed by the jury, will reduce the crime
charged to a lesser offense, not whether there is some credible evidence.” (Emphases in original.)
People v. McDonald, 2016 IL 118882, ¶ 25. We review the trial court’s decision for an abuse of
discretion. Id. ¶ 59; see also Eubanks, 2019 IL 123525, ¶ 72.
¶ 42 The primary distinction between first degree murder and the lesser-included offense of
reckless homicide is the mental state of the defendant. Eubanks, 2019 IL 123525, ¶ 74. The mental
state required to support a conviction for murder is knowing that one’s actions “create a strong
probability of death or great bodily harm to that individual or another.” 720 ILCS 5/9-1(a)(2)
(West 2008)). The mental state for reckless homicide, on the other hand, is the reckless
performance of actions that are likely to cause death or great bodily harm to another. 720 ILCS
5/9-3(a) (West 2008). A person acts recklessly when “he consciously disregards a substantial and
unjustifiable risk *** and such disregard constitutes a gross deviation from the standard of care
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which a reasonable person would exercise in the situation.” 720 ILCS 5/4-6 (West 2008). “
‘Reckless conduct generally involves a lesser degree of risk than conduct that creates a strong
probability of death or great bodily harm.’ ” Eubanks, 2019 IL 123525, ¶ 74 (quoting People v.
DiVincenzo, 183 Ill. 2d 239, 250 (1998).
¶ 43 In Eubanks, the defendant was convicted of, inter alia, first degree murder, after fleeing a
traffic stop and striking and killing one pedestrian and seriously injuring another. 2019 IL 123525,
¶ 1. The facts at trial revealed that the defendant, at approximately 9 p.m., was traveling anywhere
between 50 to 90 miles per hour on a residential street without his headlights on when 2 pedestrians
crossed the street between parked cars. Id. ¶¶ 12-15. The defendant struck the pedestrians without
slowing down and drove away. Id. Earlier that evening, the defendant had fled a traffic stop. Id.
¶ 10. The defendant’s urine tested positive for cannabis and ecstasy and their metabolites, as well
as cocaine metabolite. Id. ¶ 21. The trial court denied the defendant’s request for a reckless
homicide instruction based on the rate of speed of his car and the severity of the impact to one of
the pedestrians, who flipped head over heels in the air. Id. ¶¶ 13, 22.
¶ 44 On appeal, the defendant argued in relevant part that the trial court abused its discretion by
failing to give the reckless homicide instruction, and this court agreed. People v. Eubanks, 2017
IL App (1st) 142837, ¶ 38. The supreme court affirmed this court’s decision on this issue after
granting the defendant’s petition for leave to appeal. The court began by explaining that a
defendant’s mental state is ordinarily subject to proof by circumstantial evidence, and determining
the mental state of a defendant was a task particularly suited to a jury. Eubanks, 2019 IL 123525,
¶ 74. The court went on to acknowledge the difficulty in deciding whether to give a reckless
homicide instruction in a first degree murder case because “courts have typically focused on the
same factors in finding the evidence sufficient to prove reckless homicide and knowing murder.”
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Id. ¶ 77. Ultimately, however, the court concluded that some evidence in this case supported a
reckless homicide instruction, citing the fact that the accident occurred in a quiet neighborhood, at
9 p.m., in December. Id. ¶ 81. From this, the court explained, a jury could have inferred that the
defendant’s mental state was reckless as opposed to knowing. Id. Indeed, the court collected cases
in which some juries had found similar circumstances to support a reckless homicide conviction,
but others to support a conviction of first degree. Id. ¶¶ 78-81.
¶ 45 We find this case factually distinguishable from Eubanks. Unlike the defendant in
Eubanks, who, while speeding through a residential neighborhood to evade police, did not
necessarily see the pedestrians who appeared between parked cars, the defendant here intentionally
followed and “bumped” Ortega’s vehicle multiple times over one mile. Indeed, despite having a
much larger car, he continued to pursue and hit Ortega’s smaller car even after he noticed that the
car was “smoking.” The defendant made a series of choices that evince a knowing mental state,
specifically, going the wrong way down the street in his pursuit of Ortega, accelerating to chase
Ortega through a red light, and then driving alongside her car. No reasonable person could fail to
see that such actions were substantially certain to cause serious bodily harm or death. 1
¶ 46 The only evidence that the defendant points to in support of a reckless homicide instruction
was his own self-serving testimony that he did not want to kill anyone and only wanted to get
Ortega’s attention. But his actions wholly belie this contention. In light of the ample, if not
overwhelming, evidence that the defendant acted knowingly or intentionally, the defendant’s lone
self-serving statement did not justify giving a reckless homicide instruction. Therefore, we cannot
1 Moreover, his actions following the incident are also consistent with a finding of the defendant’s knowing or intentional mental state. He left the scene of the fatal collision, called 911 to falsely report that his vehicle was stolen, and evaded police for several days. 12 1-15-2319-B
say that the trial court abused its discretion when it determined that there was insufficient evidence
to support a reckless homicide instruction.
¶ 47 With regard to the remaining errors which the defendant raised on appeal – i.e. the trial
court’s refusal to allow voir dire questions on the subject of domestic violence and prosecutorial
misconduct – our analysis from our prior order remains unchanged and is incorporated by reference
herein. See Enriquez, 2018 IL App (1st) 152319-U, ¶¶ 69-97.
¶ 48 The parties’ briefs adequately lay out their respective contentions and we are therefore of
the opinion that oral argument is unnecessary in this case. We thus order that, pursuant to
Supreme Court Rule 352(a) as amended, this case is taken for consideration without oral
argument.
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 51 Affirmed.