People v. Romero

892 N.E.2d 1122, 384 Ill. App. 3d 125, 323 Ill. Dec. 130, 2008 Ill. App. LEXIS 736
Appellate Court of Illinois·Decided July 24, 2008·No. 1-06-3736·Published·Cited by 7 cases

Opinion

JUSTICE MURPHY

delivered the opinion of the court:

Defendant, Francisco Romero, was charged with first degree murder (720 ILCS 5/9 — 1(a)(1) (West 2004)) for the July 28, 2001, shooting death of 12-year-old Francisco Macias. Following a jury trial, on August 7, 2006, defendant was found guilty of two counts of first degree murder. The trial court denied defendant’s motion for a new trial and sentenced defendant to 40 years’ imprisonment for first degree murder (730 ILCS 5/5 — 8—1(a)(1)(a) (West 2004)) and an additional 25 years’ imprisonment for personally discharging a firearm in the commission of the crime pursuant to the sentence enhancement statute (730 ILCS 5/5 — 8—1(a)(1)(d)(iii) (West 2004)).

Defendant asserts three issues on appeal. Defendant first argues that the jury verdict was not supported by the evidence. Defendant also contends that the trial court erred in failing to properly voir dire the jury after a jury member saw defendant being led through the courthouse before trial wearing shackles and a Department of Corrections jumpsuit. Finally, defendant argues that he was prejudiced by prosecutorial misconduct during closing arguments. For the following reasons, we affirm.

I. BACKGROUND

At trial, the State presented evidence revealing that on July 28, 2001, the victim and his 11-year-old friend Edgar Jimenez (Edgar) were walking down West 48th Street in Chicago, Illinois, when they happened upon their 10-year-old friend Ivan Diaz (Ivan). Ivan was with his brother Jesus Diaz (Jesus), Jeffery Hooper (Jeffery), and Jose Cepeda (Jose) in front of the Diaz residence at 1714 West 48th Street. The residence was located within the territory of the Latin Souls street gang and Jesus, Jeffery, and Jose were all members of the Latin Souls.

At the time of the shooting, Jesus was sitting on a chair in front of the house. Jesus had a clear view to the west, but his eastern view was obstructed by a wall next to the gangway that extended alongside the house. The gangway continued back to a coach house and then to the alleyway. The gate to the gangway is approximately six feet tall and, at the time of the shooting, it was closed and locked. Jeffery was standing in the doorway to the house, Ivan was in front of Jesus, Jose was standing in front of the gate to the gangway, and the victim and Edgar were standing farther away, southwest of Jesus. Just prior to the shooting, Jose made a motion to move away from the gate and moved onto the porch. Jesus was talking to the victim when he heard a shot fired, smelled smoke, and saw a bullet enter the right side of the victim’s head.

The victim fell to the ground and Jesus ran inside the house and shut the door for a moment. After realizing what had happened, Jesus opened the door and went to see the victim who was on the ground bleeding and shaking. Jesus told Jeffery to call 911. Jesus testified that he then saw a man with a gun exit the church across the street. He was concerned until the man flashed a police badge and Jesus called him over. Jesus also told Jose to get a towel to place over the victim.

Edgar testified that, at the time of trial, he was a member of the La Raza street gang and that they were at war with every other gang, including the Latin Saints. In addition, Edgar was on probation in juvenile court for possession of a gun. However, at the time of the shooting, Edgar was not affiliated with a gang. Edgar testified that on the day of the shooting, he saw defendant run up the gangway, shake the gate with both hands, and look at Edgar over the fence for a couple of seconds. Edgar noticed that defendant had a teardrop tattoo under his left eye, a shag haircut with a tail in the back and was wearing a baby blue and white shirt, the colors of the Latin Saints. When asked by defense counsel, Edgar admitted that he told the police he saw a teardrop tattoo under the shooter’s right eye, but he denied that he told the police he had a bad complexion.

Edgar testified that defendant had a pistol in his right hand which he reached out through the gate and then shot the victim. Edgar testified that he fled to a nearby house, ran up to the second floor and asked some ladies in the house to call an ambulance. Edgar returned to the scene to find the victim with blood on his face, shaking, and his eyes were turning white. Edgar then ran home because he was scared and did not talk to the police on the scene. When presented with his original statement to the police that he ran into a beauty shop, Edgar admitted that he made that statement. Edgar explained that the first floor of the building he ran into was a building that looked like a beauty shop, but he ran up to the second floor.

Edgar identified defendant in the courtroom as the shooter. Edgar also testified that, with his mother present, he was interviewed by detectives on the night of the shooting at his home and again a couple nights later when they brought photos. Edgar testified that he identified defendant’s photograph as that of the shooter. On August 1, 2001, he was going to the victim’s wake with his mother and siblings when his sister asked him if a man across the street was the shooter. Edgar saw defendant eating at a hot dog stand and told his family that defendant was the shooter. The family went into a store and Edgar’s sister called the police and gave an anonymous tip. They waited in the store as the police arrived and arrested defendant and then went to the wake. A few days later, Edgar viewed a lineup at the police station and identified defendant again as the shooter.

Detective Allen Szudarski of the Chicago police department was assigned to investigate the shooting and responded to the scene shortly after the shooting occurred. Witnesses of the shooting stated that there was only one offender. Szudarski returned to the police station with Jose and worked with him to create a composite sketch based on descriptions provided.

Szudarski testified that on July 30, 2001, he compiled a group of photographs of people arrested for various crimes that resembled the description of the suspect. Defense counsel objected to Szudarski’s characterization of the photographs as gathered from men who had been arrested in the past and the trial court overruled the objection. The prosecutor next asked Szudarski if he had a picture of defendant, in addition to the pictures of men previously arrested. Several of the men in the photos had marks under their right eye, though defendant was the only one pictured with a teardrop tattoo under his left eye. Szudarski took the photo array to Edgar’s home and Edgar identified defendant from the photos as the shooter.

Later that day, Detective John Henry interviewed Edgar at his home. Edgar told Henry that the shooter had a teardrop tattoo under his right eye, bushy eyebrows, and a bad complexion and was wearing a dark blue shirt. Edgar also told Henry that after the shooting, he ran westbound to a beauty shop.

Fabian Gomez, a member of the Latin Saints street gang, testified that he had been working with the Chicago police as a confidential informant since May 2001.

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People v. Romero, 892 N.E.2d 1122, 384 Ill. App. 3d 125, 323 Ill. Dec. 130, 2008 Ill. App. LEXIS 736 (Ill. Ct. App. 2008).

892 N.E.2d 1122 (People v. Romero) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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