People v. Gonzalez

458 N.E.2d 1047, 120 Ill. App. 3d 1029, 76 Ill. Dec. 393, 1983 Ill. App. LEXIS 2692
Appellate Court of Illinois·Decided December 27, 1983·No. 82—1473, 82—1701 cons.·Published·Cited by 17 cases

Opinions

JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and, after his motion for a new trial was denied, he was sentenced to 35 years’ imprisonment.

On appeal defendant raises as issues whether the circuit court erred by: (1) denying him an adequate opportunity to prepare for trial; (2) prohibiting cross-examination of a State’s witness as to his gang affiliations; and, (3) refusing to permit defendant to impeach his own witness with the witness’ omission of certain facts from his police report.

On May 12, 1981, Michael Rodriguez, also known as “Monkey-man,” was fatally shot near the intersection of Cleaver and Black-hawk Streets in Chicago. The following day, defendant was arrested and subsequently charged with murder and armed violence in connection with the slaying.

In its July 31, 1981, answer to defendant’s motion for discovery, the State indicated that it might call as witnesses, among others, Robert Burden, “David Alonsa, aka Alonzo [sic],” and Mario Zuniga. Their addresses were not furnished. Defendant moved for specific discovery, under Supreme Court Rule 412(a)(i) (87 Ill. 2d R. 412(a)(i)), of the current addresses and pretrial production of Alonso and Zuniga, alleging that the State had relocated these witnesses following a preliminary hearing, and that they could not be located at the addresses and phone numbers provided by the State after repeated defense requests for such information. The State indicated that, as their whereabouts were unknown, it would introduce their preliminary hearing testimony at trial; noted a continuing investigation to locate the witnesses; and that defendant would be advised as soon as they were located.

Jury selection for the trial began on Friday, May 7, 1982. The State said it would “possibly” argue on the following Monday to intellect evidence of gang membership into its case. On Monday, May 10, however, the issue of gang membership was not raised. On May 11, the State suggested that the court rule on the issue because it appeared to be an essential part of the defense theory. Defense counsel then argued that the case was “being put on our defendant,” and that reference to gang membership was necessary to show the motive for the killing and to shed light on why witnesses would testify in a certain way. The State then observed that it was neither for nor against allowing references to gang membership and had prepared its case accordingly.

Defense counsel requested and received an in camera hearing out of the presence of the State so that it could explain to the court the importance of the gang issue to its theory of defense. Although this hearing is not recorded, defense counsel at the conclusion of its case recited the theory earlier presented: Gonzalez, recently father of a son, had allegedly withdrawn from gang membership and, as a result, had been harassed and threatened by gang “collectors” and “enforcers,” Alonso and Zuniga. Gonzalez defied their requests to sell drugs for the gang and was told by Alonso and Zuniga that, unless he at least contributed to gang coffers, “they would get him.” Defense counsel noted that this theory gave Alonso a motive to fabricate, especially since he was at the scene of the homicide for which he might himself be accountable. Nevertheless, the circuit court ruled that “[tjhere is to be no reference to gang affiliations in this case.”

Meanwhile, with respect to another issue, on May 10, defense counsel noted that he and co-counsel had interviewed witness Robert Burden in January 1982, at which time Burden said he could not identify defendant as the offender; as a result, Burden was scheduled to be a defense witness. An appointment to interview Burden at 9 a.m. on May 7 was made with Burden’s mother. Counsel further related that Burden’s mother was contacted by the State after the appointment was made, and when she advised the caller of the next day’s appointment at 9 a.m. with defense counsel, she was told that the State would have her son picked up at 8 a.m., which was done. When defense counsel arrived at the designated time, they learned that Burden had been picked up an hour earlier. As Burden remained in State custody, defense counsel argued, an interview was needed because of indications that Burden’s testimony might be different and might therefore warrant a change in defense strategy. The circuit court granted time for such interview before continuing with jury selection; at the same time, counsel was permitted an interview with Alonso, who had been in State custody since May 6.

On May 11, shortly before opening statements by counsel, the State remarked that it would present Burden as its own witness and that he would deny the substance of his earlier statement made to defense counsel. Defense counsel then moved for a continuance until the next day so that they could “restructure” the defense and possibly bring in another attorney. The court denied this motion and characterized counsel’s dilemma as “simple,” requiring “one or the other” to .withdraw from representing defendant in order to testify in rebuttal. Neither defense counsel withdrew.

Robert Burden, 14 years old at the time, testified for the State at trial. At about 7:30 p.m. on May 12, 1981, he was walking on Black-hawk toward a nearby park. He passed Monkeyman, whom he had known all his life, and crossed Blackhawk at its intersection with Cleaver. At that point he noticed three people in a gangway on Cleaver: defendant, Alonso and Zuniga. He had known Alonso and Zuniga two to three years; he “used to just see [defendant] a lot, I ain’t know him.” He observed defendant put something on his head, run across Cleaver and into the alley off Blackhawk. He lost sight of him for five to 10 seconds between buildings. When defendant reappeared, he pulled a gun and shot Monkeyman, on Blackhawk, four or five times, and then ran back the same way he had come. Burden was the first person to reach Monkeyman. He then went to call an ambulance. When he returned to the scene, police had arrived and Burden gave them an account of the crime and a description of the assailant. On cross-examination, Burden said he had spent the past four days in a hotel where he had shared meals with Alonso and discussed the case with police. There was no attempt to impeach Burden with his allegedly inconsistent statement to defense counsel made in January 1982.

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People v. Gonzalez, 458 N.E.2d 1047, 120 Ill. App. 3d 1029, 76 Ill. Dec. 393, 1983 Ill. App. LEXIS 2692 (Ill. Ct. App. 1983).

458 N.E.2d 1047 (People v. Gonzalez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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