People v. Nino

665 N.E.2d 847, 279 Ill. App. 3d 1027, 216 Ill. Dec. 589, 1996 Ill. App. LEXIS 315
CourtAppellate Court of Illinois
DecidedApril 30, 1996
Docket3-94-0678
StatusPublished
Cited by24 cases

This text of 665 N.E.2d 847 (People v. Nino) 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. Nino, 665 N.E.2d 847, 279 Ill. App. 3d 1027, 216 Ill. Dec. 589, 1996 Ill. App. LEXIS 315 (Ill. Ct. App. 1996).

Opinions

JUSTICE McCUSKEY

delivered the opinion of the court:

Following a jury trial with eight other defendants, Fidel Nino (the defendant) was convicted of first degree murder (720 ILCS 5/9— 1(b)(6) (West 1994)), aggravated arson (720 ILCS 5/20 — 1.1(a)(1) (West 1994)), and aggravated discharge of a firearm (720 ILCS 5/24— 1.2(a)(1) (West 1994)). The defendant received concurrent sentences in the Department of Corrections of 75 years, 50 years, and 15 years, respectively.

On appeal, the defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied his statutory right to a speedy trial; (3) the State misled the jury concerning its dealings with a material witness, Victor Aldava (Aldava); (4) the prosecutor improperly commented on his right to remain silent; (5) he was denied a fair trial by the prosecutor’s improper closing argument; (6) the prosecutor improperly introduced evidence of other crimes; (7) the trial court improperly relied on inadmissible evidence to give him an extended sentence; and (8) his sentence is grossly disproportionate to those of his codefendants.

Following our careful review of the record, we determine the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. We also find no violation of the defendant’s speedy trial rights. However, we conclude that the State engaged in improper conduct by: (1) misleading the jury regarding its dealings with Aldava; (2) commenting on the defendant’s right to remain silent; (3) misleading the jury with improper closing argument; and (4) introducing evidence of other crimes. The cumulative impact of this conduct fundamentally flawed the defendant’s trial. As a consequence, the defendant is entitled to a new trial. Because the cause is being remanded for a new trial, we will not address the questions regarding sentencing.

I. Background

On November 21, 1993, several members of the Latin Kings street gang firebombed and shot into a house on the east side of Joliet. Aldava and his bedridden grandmother, Nicolosa Esquivel, were the only people in the house. After the firebombing, Aldava tried unsuccessfully to save his grandmother’s life. She died from smoke inhalation.

Danny Martinez testified that on the day of the crimes, several members of the Latin Kings met twice at his house. The defendant and Anthony Montoya held leadership positions in the Joliet area street gang. The first meeting occurred at approximately 1 p.m. Danny’s live-in girlfriend, Angelina Borrego (Angelina), testified that, at Danny’s request, she was out of the house before the meeting started. However, before she left, Angelina saw the defendant and Montoya arrive at the house.

Danny testified that, at the meeting, Michael Martinez (Michael) sold the street gang a stolen 9 millimeter handgun. Danny testified that Juan Woodward, Mario and Freddie Gonzalez, and Jessie Pena told the defendant they had been subjected to an armed attack by Jose Aldava, a rival Vice Lords gang member who lived with his brother, Victor.

Following this revelation, the defendant, Montoya, and Danny (a "staff member” of the Latin King’s leadership) held a small meeting to decide what to do about Jose Aldava. The defendant then told Woodward, the Gonzalezes, and Pena "to burn down” the Aldava residence. Before the meeting adjourned, the defendant and Montoya instructed all of the gang members to return to Danny’s house later that evening for another meeting.

Danny testified that, at approximately 5 p.m., various Latin Kings began arriving at his home. Angelina was present, but went into a bedroom before the meeting began and did not see the gang members arrive. Danny said that he showed Woodward how to use the 9 millimeter handgun and gave a shotgun to Freddie Gonzalez. The defendant instructed a group of Latin Kings to attract the police to a nearby street by throwing rocks at cars. Danny helped construct firebombs out of 40-ounce beer bottles, rags, and gasoline. Pena and Mario Gonzalez were told to break the window of the Aldava residence to allow the entry of the firebombs. After the second meeting, Angelina testified that Danny asked her if she wanted to go to a Pizza Hut with the defendant and Montoya. She refused and saw the defendant and Montoya leave the meeting with their girlfriends.

Danny testified that after the others left the meeting, he heard gunshots. He identified the sound of the shots as coming from a 9 millimeter handgun. The Latin Kings who were involved in the firebombing returned to Danny’s house. At his home, Danny took the 9 millimeter handgun and the shotgun from the gang members. Danny and Angelina then ate dinner.

Aldava testified that he was a member of the Two-Sixers street gang. On November 21, 1993, at around 6:20 p.m., he was looking out his front bay window while talking on the telephone with his girlfriend. Several Latin Kings walked by his front window and displayed gang signs disrespecting the Gangster Disciples and the Two-Sixers. About five minutes later, the Latin Kings returned. Aldava saw Juan Woodward pull a gun from his waist, and Aldava threw himself down on the floor of the home. He heard four gunshots and glass breaking. Aldava then saw two firebombs come through the front window. As he brushed some fire off his clothing, Aldava saw the Latin Kings running away. Aldava tried to carry his grandmother from her room but was unable to accomplish the task. He then ran next door to get help from his neighbors. Firefighters arrived shortly thereafter.

The jury returned its verdict finding Freddie Gonzalez, Mario Gonzalez, the defendant and Montoya guilty of first degree murder, aggravated arson, and aggravated discharge of a firearm. Eddie Olender and Joe Lopez were found guilty of theft and not guilty of first degree murder. Anthony Morrow, Miguel Orozco and Victor Guzman were found not guilty on all counts. Following sentencing, the defendant filed a timely notice of appeal.

II. Sufficiency of Proof

The defendant initially claims that he was not proven guilty beyond a reasonable doubt of first degree murder, aggravated arson, and aggravated discharge of a firearm. In this regard, the defendant relies primarily on his contention that Danny and Michael were unbelievable accomplice witnesses who received financial rewards and great leniency from the State in exchange for their testimony.

A. Applicable Law and Standard of Review

The evidence shows that after the second meeting at Danny’s house, the defendant and Montoya went to Pizza Hut for dinner and were not present at the crime scene or Danny’s house during the rest of the evening. As a consequence, the defendant was charged under an accountability theory. Accountability under the law must be established by evidence which shows the defendant: (1) solicited, aided, abetted, agreed, or attempted the offense; (2) participated before or during the offense; and (3) had a concurrent, specific intent to promote or facilitate the commission of the offense. 720 ILCS 5/5

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People v. Nino
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Cite This Page — Counsel Stack

Bluebook (online)
665 N.E.2d 847, 279 Ill. App. 3d 1027, 216 Ill. Dec. 589, 1996 Ill. App. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nino-illappct-1996.