People v. BakrPeople v. Bakr
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- Before:
- Tully, O’Brien, Gallagher
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
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
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
Montelongo also was among the codefendants who testified at trial, although he testified that he could not remember the details of the murder or his arrest. Montelongo claimed that he did not remember anyone coming to his home on the night of the shooting and that he did not remember either getting a gun from or giving a gun to defendant. He did recall getting arrested and speaking with a detective subsequent to his arrest, although he stated that he did not recall the substance of the conversations he had with Chicago police officers. Over defense counsel‘s objection, Montelongo‘s videotaped statement was admitted as substantive evidence under
Following all of the testimony, the State rested its case-in-chief. Defendant‘s counsel moved for a directed finding, which was denied by the trial court. Defendant then took the stand on his own behalf. Defendant testified that he recalled being arrested, but recalled that he had no idea why he was being arrested. He testified that he had told the police that he could not have been involved in the shooting because he had a cast on from September to October 2001. He added that he had not left his house except to go to the backyard for air or to see his girlfriend at her house. Defendant stated that during the period of time surrounding the murder he was trying to stay away from the neighborhood and the gang. Defendant denied knowing anything about the shooting and stated that Nevarez, Montelongo, and Melendez were all lying. Defendant also denied making any inculpatory statements to Detective Powell regarding the shooting.
After closing arguments were delivered by both sides, the jury was instructed by the trial court that neither sympathy nor prejudice should influence the jury. Following deliberations, defendant was found guilty of first degree murder and aggravated battery. On October 29, 2004, defendant filed a motion for a new trial, which was denied by the trial court. The trial court sentenced defendant to 25 years in the Illinois Department of Corrections for his first degree murder conviction. The court also made a specific finding that defendant had personally discharged a firearm and added an additional 25 years to his sentence. The trial court also sentenced defendant to 10 years based on the aggravated battery with a firearm charge to be served consecutively to the 50-year first degree murder sentence. Defendant‘s motion to reconsider the sentence was denied. Defendant appeals.
DISCUSSION
On appeal, defendant first contends that the trial court erred by allowing the State to admit the videotaped statements of Jesus Nevarez and Armando Montelongo. Specifically, defendant argues that his constitutional rights under the confrontation clause, as enumerated by the United States Supreme Court in Crawford v. Washington, 541 U.S. at 36, 158 L. Ed. 2d at 177, 124 S. Ct. at 1354, were denied when the trial court admitted the videotaped statements “because Nevarez and Montelongo were unavailable for cross-examination.” Before addressing whether the trial court erred when it admitted the videotaped statements, we must determine the appropriate standard for reviewing the trial court‘s evidentiary ruling.
Defendant, relying on our supreme court‘s decision in People v. McClanahan, 191 Ill. 2d 127, 132 (2000), contends that we should review the trial court‘s decision to admit the videotaped statements de novo because, according to defendant, the trial court‘s evidentiary ruling depended upon a question of constitutional law. McClanahan, however, dealt with the issue of whether an Illinois statute was constitutional, and, assessing the appropriate standard of review, our supreme court stated that the issue of whether a statute is constitutional should be reviewed de novo. McClanahan, 191 Ill. 2d at 132. While it is true that challenges to the constitutionality of statutes are reviewed de novo, our supreme court has confirmed that evidentiary rulings, such as the one presented by this case, are within the sound discretion of the trial court and should not be reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001), quoting People v. Williams, 188 Ill. 2d 365, 369 (1999) (holding that reviewing courts should defer to trial court‘s evidentiary rulings even if they “involve legal issues unless ‘trial court‘s exercise of discretion has been frustrated by an erroneous rule of law’ “); see also People v. Purcell, 364 Ill. App. 3d 283, 294 (2006) (citing to Caffey and applying abuse of discretion standard when reviewing whether trial court‘s admission of grand jury testimony violated Crawford). Therefore, in reviewing the trial court‘s decision to admit the videotape recordings, we will assess whether the trial court abused its discretion. Caffey, 205 Ill. 2d at 89. “An abuse of discretion will be found only where the trial court‘s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” Caffey, 205 Ill. 2d at 89.
As stated, the initial issue raised by defendant‘s appeal is whether his rights under the confrontation clause were violated by the trial court‘s decision to admit into evidence the videotaped statements of Nevarez and Montelongo. The trial court admitted the videotaped statements provided by Nevarez and Montelongo as substantive evidence pursuant to
The confrontation clause of the sixth amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.”
In Crawford v. Washington, the United States Supreme Court reinterpreted the confrontation clause and held that the “testimonial” hearsay statements of a witness who is unavailable at trial may not be admitted against a criminal defendant unless the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 42, 158 L. Ed. 2d at 187, 124 S. Ct. at 1359. The Crawford Court also confirmed that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (Emphasis added.) Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1370 n.9. Furthermore, in People v. Desantiago, 365 Ill. App. 3d 855, 870 (2006), we elaborated on the Crawford Court‘s reinterpretation of the confrontation clause and held that “a defendant‘s rights under the confrontation clause are not absolute; rather, ‘the confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish’ ” (emphasis in original) (quoting People v. Jones, 156 Ill. 2d 225, 243-24, 620 N.E.2d 325 (1993)). See also People v. Redd, 135 Ill. 2d 252, 310, 553 N.E.2d 316 (1990) (confrontation clause is not violated as long as declarant is actually testifying as a witness and is subject to cross-examination). Moreover, no confrontation clause problems exist simply because a declarant‘s alleged memory problems precluded the declarant from being cross-examined to the extent that defense counsel would have liked. Desantiago, 365 Ill. App. 3d 855, citing Mercer v. United States, 864 A.2d 110, 114 (D.C. App. 2004).
Here, defendant contends that Nevarez‘s and Montelongo‘s ability to recall neither “making their statements nor the incident that was the subject of their statements” rendered the witnesses “unavailable” for effective confrontation, and therefore the admission of their videotaped statements into evidence deprived defendant of his rights under the confrontation clause. Contrary to defendant‘s assertion that Nevarez and Montelongo were unavailable, this record confirms that both Nevarez and Montelongo physically appeared at trial and were
Defendant‘s second claim of error is that defendant was denied a fair trial by the cumulative impact of instances of prosecutorial misconduct committed by the State. Specifically, defendant alleges that the prosecutors (1) improperly elicited testimony that the victim was developmentally disabled, (2) repeatedly asked defendant to comment on the veracity of the State‘s witnesses, and (3) made several improper arguments during rebuttal closing argument, including shifting the burden of proof, misstating the extent of the presumption of innocence, and making comments that penalized defendant for exercising his rights to counsel at trial.
Because defendant failed to object to any of these alleged instances of improper conduct and failed to include them in his posttrial motion, we address each of defendant‘s allegations using the plain error standard set forth in Illinois Supreme Court Rule 615(a) (
In this case, we cannot say that the evidence was closely balanced. The evidence against defendant included eyewitness identification by Luis Colon, who identified defendant as the shooter with “one hundred percent” certainty. The State also presented the accounts of several of defendant‘s cooffenders, each of whom identified defendant as the
First, defendant argues that the prosecutor improperly elicited testimony from the victim‘s mother, Mayra Ortiz, suggesting that the victim was developmentally disabled. While we agree that discussing the victim‘s mental disability is immaterial to defendant‘s guilt or innocence, eliciting testimony regarding the personal traits of a victim is only reversible error where the testimony is presented in a manner that causes the jury to believe it is material, rather than incidental. People v. Williams, 147 Ill. 2d 173, 229 (1991). Our supreme court has confirmed that where, as here, the testimony regarding the victim‘s mental condition was elicited by the prosecutor in the form of a single question and not referenced during the rest of the trial, such conduct was not reversible error. See People v. Page, 155 Ill. 2d 232, 270 (1993). Therefore, because the reference to the victim‘s mental condition was limited to an isolated question and not referred to again, we do not find that this constituted prosecutorial misconduct such that defendant was denied a fair trial.
Second, defendant claims that the prosecutors engaged in improper cross-examination by asking the defendant to comment on the veracity of the State‘s witnesses. We disagree. During direct examination, defendant accused all of the witnesses testifying against him of lying. By raising the issue of the witness’ veracity, defendant opened the door for the prosecution to challenge defendant‘s credibility. People v. Millighan, 265 Ill. App. 3d 967, 972 (1994). Furthermore, the scope of cross-examination is in the sole discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Baugh, 358 Ill. App. 3d 718, 739 (2005). Accordingly, we do not believe that the State‘s cross-examination of defendant was in any way improper and we certainly cannot say that the cross-examination undermined his right to a fair trial.
Third, defendant claims that the prosecutor made several improper arguments during rebuttal closing argument, including shifting the burden of proof, misstating the extent of the presumption of innocence, and making comments that penalized defendant for exercising his
Defendant‘s final argument on appeal is that he is entitled to an additional 362 days of credit against his sentence based on the time he spent in custody from January 17, 2002, which was the date on which defendant was arrested, until December 14, 2004, which was the date on which defendant was sentenced. The State concedes that defendant is entitled to 362 days of credit. Pursuant to Supreme Court Rule 615 (
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed and the mittimus corrected.
Affirmed.
O‘BRIEN, P.J., and GALLAGHER, J., concur.