In re E. H.
Annotate this Case
Second Division
September 1, 1998
No. 1-96-3450
In re E.H., a Minor, ) Appeal from the
(The People of the State of Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
) No. 95 JD 15057
v. )
)
E.H., ) Honorable
) Gerald T. Winiecki,
Respondent-Appellant). ) Judge Presiding.
JUSTICE RAKOWSKI delivered the opinion of the court:
On September 17, 1995, respondent's gang confronted another
gang at a baseball field near 17th Avenue and Bloomingdale in
Melrose Park. Testimony at trial showed that soon after
respondent's group began throwing bottles at the other gang,
respondent wielded a chrome automatic handgun and began shooting
toward the other gang. Steven Finney suffered a gunshot wound to
the head, which eventually caused his death.
Following a bench trial, respondent, E.H., a 15 year-old
minor, was adjudicated delinquent for committing first-degree
murder. From this finding, respondent appeals. We find that:
(1) respondent was proved guilty beyond a reasonable doubt based
on clear, uncontradicted, and substantiated accomplice testimony;
(2) the testimony of an officer which included nonverbal,
nonassertive conduct of respondent's mother was not hearsay; and
(3) the State's use of any hearsay inference during closing
argument was not considered in the trial court's adjudication
and, thus, did not prejudice the respondent.
I. FACTS
Jaime Aguilera testified on behalf of the State. Aguilera
at first answered "no" to some of the State's initial questions
as to whether he saw anything unusual on September 17, 1995, a
shooting, or a crime take place. Nonetheless, Aguilera testified
that he, respondent, and about 10 other individuals met in
Franklin Park and then headed by car to respondent's house
located at 2017 North 17th Avenue in Melrose Park. Aguilera
testified that after they arrived at respondent's house and
exited their cars, some of the individuals said that they were
supposed to find some other rival gang. Because the gangs were
in some type of fight, they gathered rocks and bottles, and he,
respondent, respondent's brother, and the other individuals
headed towards a park that was also on 17th Avenue. Upon
arriving, the group found members of another gang. Aguilera
stated that the other gang began to charge toward them and, in
response, his group charged while throwing bottles at them.
Aguilera testified that it was at this time he saw respondent
pull out a chrome automatic handgun and begin shooting toward the
other gang. Aguilera estimated that respondent fired six to
seven shots. Aguilera testified that it appeared that respondent
was the only individual from either group who had a gun.
Aguilera stated that, after the shooting, respondent ran back to
his house.
On cross-examination, Aguilera admitted that when he spoke
to the police on the day following the shooting, he told them two
different stories. Aguilera admitted that he first told the
police that he stayed in respondent's house when respondent and
respondent's brother left to fight someone and that when they
returned they seemed to be in a normal mood. Aguilera admitted
that later the same day he told police that he stood by the park
as a large group of respondent's friends went to the corner of
17th Avenue and Bloomingdale and that he heard gunshots. He also
conceded at trial that he originally claimed that it was
respondent's brother who shot the gun. Aguilera acknowledged on
cross-examination that the police arrested him in connection with
the shooting, that he was brought before a grand jury, that he
spent three days in jail, and that he was still in "trouble" for
the crime.
Victor Fong and Fernando Hernandez, who were near the
location of the shooting, also testified for the State. Fong
testified that he saw Steven Finney alive earlier on September
17, 1995. Fong testified that around 6:30 or 7 p.m., before the
shooting, he saw respondent, respondent's brother, and Jose Rocha
flashing gang signs while driving around in a blue car on
Bloomingdale. He also testified that a blue car towed by the
police and shown in a State's exhibit matched the one that
respondent, respondent's brother, and Rocha were riding in on the
day of the shooting. Finally, Fong stated that, while standing
about 50 yards away from the baseball field, he heard some
screaming followed by gunshots.
Similar to Fong, Hernandez was close to where the shooting
occurred. An hour prior to the shooting, Hernandez saw
respondent, respondent's brother, and Rocha flashing gang signs
while driving in a blue LeSabre near the location of the
shooting. He stated that later, while heading toward the
baseball field, he saw approximately 15 youths approaching and
soon after that he heard shots being fired. Hernandez also
identified a car towed by the police and shown in a State's
exhibit as being the same blue LeSabre that he saw respondent,
respondent's brother, and Rocha riding in before the shooting.
Jose Heredia and Primitivo Fanco also testified for the
State. Heredia testified that he, the victim, and other
individuals were near 17th Avenue and Bloomingdale when another
group came towards them saying "I.D. love" and throwing bottles
at them. Heredia testified that it was at this time the victim
was shot in the head. Fanco testified that he saw the victim
immediately after he was shot at the Little League field in
Melrose Park.
The State also called two police officers to testify.
Officer Vito Scavo testified that upon the request of Mrs. H.,
respondent's mother, he met with her at the police station.
After they met, they went to 17th Avenue and Fullerton. He
testified that, upon arriving, she pointed to a weeded lot. He
testified that he searched the area, and after a few minutes, he
found a .380-caliber chrome pistol.
Officer Michael Castellan testified that he was called to
the Little League field on the 1900 block of 17th Avenue in
Melrose Park at approximately 8 p.m. on September 17, 1995.
There he discovered approximately five .380-caliber automatic
casings in the middle of the street. He also testified that the
police towed a blue 1986 Buick LeSabre owned by Jose Rocha.
Finally, the State called respondent's mother to testify.
However, she invoked her fifth amendment right not to incriminate
herself and did not contribute to the evidence. After the State
rested, respondent motioned for a directed verdict, and the court
denied the motion. Respondent did not testify and did not call
any witnesses.
Upon finding respondent delinquent, the trial court
committed respondent to the Illinois Department of Corrections
until his twenty-first birthday. Respondent appeals. We have
jurisdiction pursuant to Supreme Court Rules 602, 603, and 660(a)
(134 Ill. 2d Rs. 602, 603, 660(a)).
II. DISCUSSION
A. Whether the Evidence Presented Proved Guilt Beyond a
Reasonable Doubt
Respondent's first contention on appeal is that the trial
court should not have found him delinquent beyond a reasonable
doubt based on the testimony of Aguilera, the alleged accomplice.
A reviewing court's function is to determine "whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
People v. Steidl, 142 Ill. 2d 204, 226 (1991). "A reviewing
court may not substitute its judgment as to the weight of the
evidence or the credibility of witnesses, but will reverse only
if the evidence is so improbable, impossible, or unsatisfactory
as to raise a reasonable doubt as to defendant's guilt." People
v. Jackson, 145 Ill. App. 3d 626, 640 (1986). " 'Once a
defendant has been found guilty of the crime charged, the
factfinder's role as weigher of the evidence is preserved through
a legal conclusion that upon judicial review all of the evidence
is to be considered in the light most favorable to the
prosecution.' " People v. Young, 128 Ill. 2d 1, 49 (1989),
quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2786-89 (1979).
"The uncorroborated testimony of an alleged accomplice is
sufficient to warrant a conviction, and the fact that the
accomplice is a self-confessed criminal and expects leniency does
not, of itself, raise a reasonable doubt." Jackson, 145 Ill.
App. 3d at 639. However, accomplice testimony is inherently weak
because the accomplice is often motivated to testify contrary to
the defendant's interests based upon malice, fear, threats,
promises or hopes of leniency, or benefits from the prosecution
(Young, 128 Ill. 2d at 47-48) and, thus, it should be "accepted
only with utmost caution and suspicion and have the absolute
conviction of its truth." People v. Williams, 147 Ill. 2d 173,
233 (1991). Nevertheless, corroborated or uncorroborated
accomplice testimony is sufficient to convict a defendant of the
charged crime where it convinces the trier of fact of the
defendant's guilt beyond a reasonable doubt. Williams, 147 Ill. 2d at 233.
Respondent contends that Aguilera's testimony was incredible
and, thus, insufficient to support a finding of guilt because
Aguilera's initial comments to the police were inconsistent with
his trial testimony and because the State might have given him
assurances. Respondent also argues that, without corroboration
as to who fired the gun, Aguilera's testimony, alone, is
insufficient to convict.
Contrary to this argument, Illinois courts have consistently
affirmed convictions based on uncorroborated accomplice testimony
where the accomplice is found positive and credible, even though
the accomplice was not initially forthright with the police and
the State promised leniency in exchange for the accomplice's
testimony. In Jackson, the appellate court affirmed defendant's
murder conviction that was based solely on uncorroborated
testimony from an accomplice who was an acknowledged criminal.
Jackson, 145 Ill. App. 3d at 640. In Jackson, not only did the
accomplice initially deny to police that she knew about
defendant's alleged crime, but she also later agreed to testify
against defendant in exchange for dismissal of the murder charge
against her. Jackson, 145 Ill. App. 3d at 629, 640.
Similarly, in People v. Padilla, 91 Ill. App. 3d 799, 801-02
(1980), the appellate court affirmed defendant's bench trial
manslaughter conviction that was based on the uncorroborated
testimony of an accomplice who testified in exchange for
dismissal of the charges against him. In Padilla, even though
other testimony explained the events leading up to and after the
shooting, the accomplice's testimony was the only evidence that
identified defendant as the person who fired the gun that killed
the victim. Padilla, 91 Ill. App. 3d at 800-01; see also People
v. Lopez, 242 Ill. App. 3d 160, 167 (1993) (only evidence
indicating that defendant sold the drugs was from the
accomplice's testimony); see generally People v. Nicholls, 236
Ill. App. 3d 275 (1992); People v. Davis, 132 Ill. App. 3d 199
(1985).
Despite the above precedent, respondent argues that this
court should reverse the trial court's adjudication. Respondent
relies on two cases, In re D.R.S., 267 Ill. App. 3d 621 (1994),
and People v. Wilson, 66 Ill. 2d 346 (1977), where the courts
reversed convictions that were based on uncorroborated accomplice
testimony. However, we find these cases distinguishable and
unpersuasive.
In In re D.R.S., the court reversed respondent's conviction
not only because it was premised on uncorroborated accomplice
testimony, but also because it found other circumstances that
undermined the trial court's adjudication. The court asserted
that: respondent's alibi was never challenged by the prosecution;
the evidence failed to show that the accomplice and respondent
were friends or socialized together; the accomplice initially
lied to the authorities by denying any responsibility; the
accomplice admitted instigating the crime; the accomplice had
other charges pending; the accomplice testified under a grant of
immunity; and the accomplice's time line of the events would have
placed the victim at home at the time of the burglary, contrary
to the victim's account.
More importantly, the appellate court insinuated that the
trial judge was biased contrary to respondent's interests. The
court noted that, during the dispositional hearing, the trial
judge asserted that "he had spent more time on [respondent's]
case and had given [respondent] more opportunities than any
juvenile that had come before him." In re D.R.S., 267 Ill. App.
3d at 625. The trial judge blasted the respondent during the
hearing by stating that he believed respondent was "one of the
most dangerous kids" he had seen for a long time and that he
sincerely hoped respondent would be incarcerated " 'for a very
long period of time for the protection of the persons and
property of the people of this community.' " In re D.R.S., 267
Ill. App. 3d at 625.
The court also considered it inconsistent that the trial
court found sufficient evidence to convict defendant for the
burglary, but not for the theft of a firearm. The court reasoned
that if the accomplice's testimony was the basis for convicting
respondent for the burglary, then it followed that the trial
court should have convicted respondent for the theft of a
firearm. The appellate court opined that these inconsistencies
between the trial court's findings undermined the sufficiency of
the evidence supporting the burglary charge. Thus, in light of
the accomplice's incredibility and the circumstances surrounding
respondent's conviction, the appellate court found that
reasonable doubt remained as to whether the respondent was
guilty.
In Wilson, our supreme court also reversed a defendant's
conviction that was based on uncorroborated accomplice testimony.
Wilson, 66 Ill. 2d at 350. Although the court reasoned that the
State's promise of immunity to the accomplice undermined the
credibility of the accomplice, it also included in its
consideration other circumstances that provided reasonable doubt
as to defendant's guilt. The court noted that it was the
accomplice who instigated the crime. The court also considered
the fact that "not only did the complainant fail to identify the
accused at a lineup, but she identified another man--the same
man--three times." Wilson, 66 Ill. 2d at 350. Moreover, she was
unable to pick defendant from the lineup even though the persons
in the lineup were required to repeat the same words that the
robber said during the crime. The court further considered that
the victim's description of the criminal as being 5 feet 6 inches
tall conflicted with defendant's actual height of 6 feet 1 inch.
Although the instant case lacks direct evidence supporting
the accomplice's assertion as to who performed the criminal act,
as was found in In re D.R.S. and Wilson, those courts did not
view that fact alone as dispositive of whether there remained a
reasonable doubt. Rather, they focussed on the contradictory
evidence affecting the credibility of the accomplices as well as
other circumstances that precluded a finding of guilt beyond a
reasonable doubt. In re D.R.S., 267 Ill. App. 3d at 625, 628-29;
Wilson, 66 Ill. 2d at 350. See also People v. Newell, 103 Ill. 2d 465, 471 (1984) (affirming appellate court's reversal of
defendant's conviction "where the only evidence [was] the
testimony of three accomplices, all convicted felons, one of whom
[said] defendant [was] guilty and two of whom [said] he [was]
not, with no corroboration of either view" (emphasis omitted)).
Unlike the above cases, the circumstantial evidence in this case
supports Aguilera's credibility and corroborates his account of
the events that occurred before and after the shooting.
Moreover, unlike In re D.R.S. in particular, the trial court in
this case lacked even a scintilla of bias against respondent that
would undermine the sufficiency of Aguilera's testimony.
At trial, Fong and Hernandez confirmed that the blue LeSabre
that the police towed after the shooting and that belonged to
Rocha was the same car respondent was in when they saw him
flashing gang signs near the location of the shooting. This
testimony coincides with Aguilera's assertion that respondent,
he, and other individuals drove from Franklin Park to 17th Avenue
near Bloomingdale in Melrose Park, and it also shows that rival
gang activity was a catalyst for the shooting. Similarly, one
reasonably can infer from this evidence that respondent had a
motive for bringing the gun to confront the other gang in the
park.
Likewise, the testimony of Heredia and Fanco confirms
Aguilera's testimony that two groups confronted each other near
the baseball field in Melrose Park. Corroborating Aguilera's
account, Heredia asserted that when Aguilera and respondent's
group met his group, respondent's group began throwing bottles at
them. Heredia also corroborated Aguilera's testimony that it was
at this time someone from Aguilera and respondent's group shot
the victim.
Lastly, Officer Castellans testified that he found five
.380-caliber automatic casings at the scene of the murder. This
testimony supports Aguilera's approximation that respondent fired
about six or seven shots from an automatic gun. Thus, unlike the
circumstances found in the cases respondent cites, the
nonaccomplice testimony and the other evidence presented in this
case substantiated Aguilera's testimony.
In light of the facts in this case and the precedent before
us, we find that a rational trier of fact could find respondent
guilty of first degree murder. Therefore, we reject respondent's
argument that the evidence was insufficient to sustain his
adjudication of delinquency.
B. Whether the Trial Court Admitted Hearsay Evidence
Respondent contends that the trial court erred by admitting
nonverbal hearsay. The following testimony from Officer Scavo is
at contention:
"MR. COMROE [Assistant State's Attorney]:
Did you have occasion to speak with
Mrs. H[.]?
A. Yes.
Q. Did you have occasion to go anyplace with
her?
A. Yes.
Q. Where did you go?
A. 17th Avenue and Fullerton in my
automobile.
Q. Did Mrs. H[.] accompany you?
MR. HUTT [Defense attorney]: Objection.
Hearsay. This is obviously trying to testify ***
as to the declarant's speech by cloaking it in
non-verbal actions.
THE COURT: Hearsay is not admissible but the
officer is testifying [as] to what occurred. The
hearsay objection would be overruled.
MR. COMROE [Assistant State's Attorney]: Where
did you go with Mrs. H[.]?
A. 17th Avenue and Fullerton.
Q. How far is that from the park you just
described?
A. Approximately half a mile.
Q. What occurred when you and Mrs. H[.] got to
the location?
A. She informed that--
MR. HUTT [Defense attorney]: Objection.
MR. COMROE [Assistant State's Attorney]: Just
tell me what she did?
A. We exited the car. She pointed out an area.
Q. What did you then do?
A. I searched the area.
Q. Did you find anything?
A. Yes.
Q. What was that?
A. A pistol.
Q. Where was the pistol found by you?
A. A weeded lot."
To qualify as hearsay, the statement, oral or written, must
be offered to establish the truth of the matter asserted. People
v. Simms, 143 Ill. 2d 154, 173 (1991); R. Ruebner, Illinois
Criminal Trial Evidence 183 (3d ed. 1997), citing, inter alia,
People v. Rogers, 81 Ill. 2d 571 (1980); People v. Murray, 201
Ill. App. 3d 573 (1990). Such statement is "hearsay because its
value as evidence depends on the credibility of an out-of-court
asserter from whom there is no opportunity for cross-
examination." R. Ruebner, Illinois Criminal Trial Evidence 183
(3d ed. 1997). However, "[t]estimony about an out-of-court
statement which is used for a purpose other than to prove the
truth of the matter asserted in the statement is not 'hearsay.' "
Simms, 143 Ill. 2d at 173. A police officer's testimony
regarding another's statements or nonverbal conduct is not
hearsay if it is offered to explain the steps in his
investigation of the crime. Simms, 143 Ill. 2d at 174.
Moreover, "[t]estimony describing the progress of the
investigation is admissible even if it suggests that a
nontestifying witness implicated the defendant." Simms, 143 Ill. 2d at 174.
Accordingly, Officer Scavo's testimony did not contain any
hearsay. The assertion that respondent's mother pointed toward a
weedy lot where Officer Scavo found a pistol was not offered for
the truth of the matter asserted. Rather, it was offered to
describe Officer Scavo's investigation. Thus, we find that
Officer Scavo's testimony did not contain hearsay.
C. Whether the State's Use of a Hearsay Inference During Its
Closing Argument is Reversible Error
Respondent also contends that the State used Officer Scavo's
testimony, which was admitted for a limited purpose, as
substantive evidence during closing argument. Respondent argues
that the State's closing argument drew an improper hearsay
inference from Scavo's testimony to connect the gun to the
respondent. The State argued:
"The chief of police, your Honor, had no
knowledge of that case other than what was
being directed to the Melrose Park Police
Department and went in a vehicle with [Mrs.
H.], your Honor, went into some field to pick
up a .380 caliber Bryco which is, your Honor,
identical to the type -- or is of a caliber,
your Honor, which is capable of firing the
types of cartridges that were expelled from
some sort of automatic at the scene of the
fatal shooting."
Respondent correctly asserts that this argument prompts the
fact finder to draw an improper hearsay inference from Scavo's
testimony. Nevertheless, a reviewing court presumes that, during
a bench trial, the trial court considered only properly admitted
and competent evidence when it made its determinations and that
respondent was not prejudiced. People v. Simac, 161 Ill. 2d 297,
311 (1994); People v. Eddmonds, 101 Ill. 2d 44, 66 (1984).
Based upon a review of both the trial court's findings at
the dispositional hearing and its reiteration of those findings
upon respondent's motion for reconsideration, we find that the
trial court did not rely on any hearsay inferences to find
respondent guilty beyond a reasonable doubt. Rather, the trial
court made it abundantly clear that it relied on Aguilera's
testimony in making its determination. Thus, we conclude that
the above assertions in the prosecutor's closing argument did not
prejudice the respondent. See People v. Wilburn, 263 Ill. App.
3d 170, 181 (1994) ("To merit reversal, a prosecutor's improper
comments must be of substantial magnitude such that they
constituted a material factor in the defendant's conviction").
III. CONCLUSION
Therefore, for the foregoing reasons, we affirm the circuit
court's adjudication of respondent as a delinquent.
Affirmed.
COUSINS, J., concurs.
McNULTY, P.J., dissents.
PRESIDING JUSTICE McNULTY, respectfully dissenting.
The majority acknowledges that Aguilera, the only witness
who identified defendant as the shooter, acted as an accomplice.
When a criminal conviction rests upon the testimony of an
accomplice, that testimony should have the "absolute conviction
of the truth." Wilson, 66 Ill. 2d at 349, quoting People v.
Zaeske, 67 Ill. App. 2d 115, 121 (1966). The conviction of the
truth is conspicuously absent from Aguilera's testimony.
Aguilera first told the court that when he saw defendant on
the evening of September 17, 1995, they did not do anything or go
anywhere, and he saw no crime take place. Then he admitted that
he, defendant, and three others he named drove around Melrose
Park together.
The testimony then becomes nearly incoherent, as Aguilera
said:
"So we got off the car and I seen [defendant], his
brother and Jose. I was with them, go inside the
house.
Q. Then what happened?
A. We were in a fight so we had gathered some
rocks and bottles and later on they had came out so we
had went to the park."
The prosecutor chose not to attempt to clarify this testimony,
although this testimony provided the setting for the assertion
that Aguilera saw defendant shoot at the other gang in the park.
Agiulera's testimony lacks corroboration in any significant
detail. Compare People v. Waln, 169 Ill. App. 3d 264, 272, 523 N.E.2d 1318 (1988); Wilson, 66 Ill. 2d at 350. Aguilera never
mentioned a blue LeSabre, nor did the prosecutor ask the make of
the car Aguilera and defendant rode around in that night.
According to Aguilera's testimony, the three others in the car
did not include defendant's brother or Jose Rocha. Fong and
Hernandez both swore they saw defendant with his brother and
Rocha that evening, around the time Aguilera said he was riding
with defendant. "[C]ontradiction of an accomplice's testimony,
as well as corroboration, is entitled to considerable weight."
People v. Eddington, 129 Ill. App. 3d 745, 473 N.E.2d 103 (1984).
Most significantly, the testimony of Fong and Hernandez
corroborates one of Aguilera's prior statements to police.
Aguilera said he, too, was with Rocha when Rocha drove around
Melrose Park, and then they all went to defendant's home. But in
that statement, Aguilera told police that defendant's brother,
not defendant, shot the gun. The record before the court gives
no indication of why the police rejected that version and
continued questioning Aguilera until he implicated defendant.
The evidence in the record corroborates the statement Aguilera
made to police, implicating defendant's brother, better than it
corroborates his courtroom testimony.
The prosecution elected not to try to show defendant guilty
as his brother's accomplice. Without some evidence to help the
trier of fact determine that the earlier statement implicating
defendant's brother is false, the evidence cannot support the
conviction of defendant beyond a reasonable doubt. Accordingly,
I dissent.
September 1, 1998
No. 1-96-3450
In re E.H., a Minor, ) Appeal from the
(The People of the State of Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
) No. 95 JD 15057
v. )
)
E.H., ) Honorable
) Gerald T. Winiecki,
Respondent-Appellant). ) Judge Presiding.
JUSTICE RAKOWSKI delivered the opinion of the court:
On September 17, 1995, respondent's gang confronted another
gang at a baseball field near 17th Avenue and Bloomingdale in
Melrose Park. Testimony at trial showed that soon after
respondent's group began throwing bottles at the other gang,
respondent wielded a chrome automatic handgun and began shooting
toward the other gang. Steven Finney suffered a gunshot wound to
the head, which eventually caused his death.
Following a bench trial, respondent, E.H., a 15 year-old
minor, was adjudicated delinquent for committing first-degree
murder. From this finding, respondent appeals. We find that:
(1) respondent was proved guilty beyond a reasonable doubt based
on clear, uncontradicted, and substantiated accomplice testimony;
(2) the testimony of an officer which included nonverbal,
nonassertive conduct of respondent's mother was not hearsay; and
(3) the State's use of any hearsay inference during closing
argument was not considered in the trial court's adjudication
and, thus, did not prejudice the respondent.
I. FACTS
Jaime Aguilera testified on behalf of the State. Aguilera
at first answered "no" to some of the State's initial questions
as to whether he saw anything unusual on September 17, 1995, a
shooting, or a crime take place. Nonetheless, Aguilera testified
that he, respondent, and about 10 other individuals met in
Franklin Park and then headed by car to respondent's house
located at 2017 North 17th Avenue in Melrose Park. Aguilera
testified that after they arrived at respondent's house and
exited their cars, some of the individuals said that they were
supposed to find some other rival gang. Because the gangs were
in some type of fight, they gathered rocks and bottles, and he,
respondent, respondent's brother, and the other individuals
headed towards a park that was also on 17th Avenue. Upon
arriving, the group found members of another gang. Aguilera
stated that the other gang began to charge toward them and, in
response, his group charged while throwing bottles at them.
Aguilera testified that it was at this time he saw respondent
pull out a chrome automatic handgun and begin shooting toward the
other gang. Aguilera estimated that respondent fired six to
seven shots. Aguilera testified that it appeared that respondent
was the only individual from either group who had a gun.
Aguilera stated that, after the shooting, respondent ran back to
his house.
On cross-examination, Aguilera admitted that when he spoke
to the police on the day following the shooting, he told them two
different stories. Aguilera admitted that he first told the
police that he stayed in respondent's house when respondent and
respondent's brother left to fight someone and that when they
returned they seemed to be in a normal mood. Aguilera admitted
that later the same day he told police that he stood by the park
as a large group of respondent's friends went to the corner of
17th Avenue and Bloomingdale and that he heard gunshots. He also
conceded at trial that he originally claimed that it was
respondent's brother who shot the gun. Aguilera acknowledged on
cross-examination that the police arrested him in connection with
the shooting, that he was brought before a grand jury, that he
spent three days in jail, and that he was still in "trouble" for
the crime.
Victor Fong and Fernando Hernandez, who were near the
location of the shooting, also testified for the State. Fong
testified that he saw Steven Finney alive earlier on September
17, 1995. Fong testified that around 6:30 or 7 p.m., before the
shooting, he saw respondent, respondent's brother, and Jose Rocha
flashing gang signs while driving around in a blue car on
Bloomingdale. He also testified that a blue car towed by the
police and shown in a State's exhibit matched the one that
respondent, respondent's brother, and Rocha were riding in on the
day of the shooting. Finally, Fong stated that, while standing
about 50 yards away from the baseball field, he heard some
screaming followed by gunshots.
Similar to Fong, Hernandez was close to where the shooting
occurred. An hour prior to the shooting, Hernandez saw
respondent, respondent's brother, and Rocha flashing gang signs
while driving in a blue LeSabre near the location of the
shooting. He stated that later, while heading toward the
baseball field, he saw approximately 15 youths approaching and
soon after that he heard shots being fired. Hernandez also
identified a car towed by the police and shown in a State's
exhibit as being the same blue LeSabre that he saw respondent,
respondent's brother, and Rocha riding in before the shooting.
Jose Heredia and Primitivo Fanco also testified for the
State. Heredia testified that he, the victim, and other
individuals were near 17th Avenue and Bloomingdale when another
group came towards them saying "I.D. love" and throwing bottles
at them. Heredia testified that it was at this time the victim
was shot in the head. Fanco testified that he saw the victim
immediately after he was shot at the Little League field in
Melrose Park.
The State also called two police officers to testify.
Officer Vito Scavo testified that upon the request of Mrs. H.,
respondent's mother, he met with her at the police station.
After they met, they went to 17th Avenue and Fullerton. He
testified that, upon arriving, she pointed to a weeded lot. He
testified that he searched the area, and after a few minutes, he
found a .380-caliber chrome pistol.
Officer Michael Castellan testified that he was called to
the Little League field on the 1900 block of 17th Avenue in
Melrose Park at approximately 8 p.m. on September 17, 1995.
There he discovered approximately five .380-caliber automatic
casings in the middle of the street. He also testified that the
police towed a blue 1986 Buick LeSabre owned by Jose Rocha.
Finally, the State called respondent's mother to testify.
However, she invoked her fifth amendment right not to incriminate
herself and did not contribute to the evidence. After the State
rested, respondent motioned for a directed verdict, and the court
denied the motion. Respondent did not testify and did not call
any witnesses.
Upon finding respondent delinquent, the trial court
committed respondent to the Illinois Department of Corrections
until his twenty-first birthday. Respondent appeals. We have
jurisdiction pursuant to Supreme Court Rules 602, 603, and 660(a)
(134 Ill. 2d Rs. 602, 603, 660(a)).
II. DISCUSSION
A. Whether the Evidence Presented Proved Guilt Beyond a
Reasonable Doubt
Respondent's first contention on appeal is that the trial
court should not have found him delinquent beyond a reasonable
doubt based on the testimony of Aguilera, the alleged accomplice.
A reviewing court's function is to determine "whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
People v. Steidl, 142 Ill. 2d 204, 226 (1991). "A reviewing
court may not substitute its judgment as to the weight of the
evidence or the credibility of witnesses, but will reverse only
if the evidence is so improbable, impossible, or unsatisfactory
as to raise a reasonable doubt as to defendant's guilt." People
v. Jackson, 145 Ill. App. 3d 626, 640 (1986). " 'Once a
defendant has been found guilty of the crime charged, the
factfinder's role as weigher of the evidence is preserved through
a legal conclusion that upon judicial review all of the evidence
is to be considered in the light most favorable to the
prosecution.' " People v. Young, 128 Ill. 2d 1, 49 (1989),
quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2786-89 (1979).
"The uncorroborated testimony of an alleged accomplice is
sufficient to warrant a conviction, and the fact that the
accomplice is a self-confessed criminal and expects leniency does
not, of itself, raise a reasonable doubt." Jackson, 145 Ill.
App. 3d at 639. However, accomplice testimony is inherently weak
because the accomplice is often motivated to testify contrary to
the defendant's interests based upon malice, fear, threats,
promises or hopes of leniency, or benefits from the prosecution
(Young, 128 Ill. 2d at 47-48) and, thus, it should be "accepted
only with utmost caution and suspicion and have the absolute
conviction of its truth." People v. Williams, 147 Ill. 2d 173,
233 (1991). Nevertheless, corroborated or uncorroborated
accomplice testimony is sufficient to convict a defendant of the
charged crime where it convinces the trier of fact of the
defendant's guilt beyond a reasonable doubt. Williams, 147 Ill. 2d at 233.
Respondent contends that Aguilera's testimony was incredible
and, thus, insufficient to support a finding of guilt because
Aguilera's initial comments to the police were inconsistent with
his trial testimony and because the State might have given him
assurances. Respondent also argues that, without corroboration
as to who fired the gun, Aguilera's testimony, alone, is
insufficient to convict.
Contrary to this argument, Illinois courts have consistently
affirmed convictions based on uncorroborated accomplice testimony
where the accomplice is found positive and credible, even though
the accomplice was not initially forthright with the police and
the State promised leniency in exchange for the accomplice's
testimony. In Jackson, the appellate court affirmed defendant's
murder conviction that was based solely on uncorroborated
testimony from an accomplice who was an acknowledged criminal.
Jackson, 145 Ill. App. 3d at 640. In Jackson, not only did the
accomplice initially deny to police that she knew about
defendant's alleged crime, but she also later agreed to testify
against defendant in exchange for dismissal of the murder charge
against her. Jackson, 145 Ill. App. 3d at 629, 640.
Similarly, in People v. Padilla, 91 Ill. App. 3d 799, 801-02
(1980), the appellate court affirmed defendant's bench trial
manslaughter conviction that was based on the uncorroborated
testimony of an accomplice who testified in exchange for
dismissal of the charges against him. In Padilla, even though
other testimony explained the events leading up to and after the
shooting, the accomplice's testimony was the only evidence that
identified defendant as the person who fired the gun that killed
the victim. Padilla, 91 Ill. App. 3d at 800-01; see also People
v. Lopez, 242 Ill. App. 3d 160, 167 (1993) (only evidence
indicating that defendant sold the drugs was from the
accomplice's testimony); see generally People v. Nicholls, 236
Ill. App. 3d 275 (1992); People v. Davis, 132 Ill. App. 3d 199
(1985).
Despite the above precedent, respondent argues that this
court should reverse the trial court's adjudication. Respondent
relies on two cases, In re D.R.S., 267 Ill. App. 3d 621 (1994),
and People v. Wilson, 66 Ill. 2d 346 (1977), where the courts
reversed convictions that were based on uncorroborated accomplice
testimony. However, we find these cases distinguishable and
unpersuasive.
In In re D.R.S., the court reversed respondent's conviction
not only because it was premised on uncorroborated accomplice
testimony, but also because it found other circumstances that
undermined the trial court's adjudication. The court asserted
that: respondent's alibi was never challenged by the prosecution;
the evidence failed to show that the accomplice and respondent
were friends or socialized together; the accomplice initially
lied to the authorities by denying any responsibility; the
accomplice admitted instigating the crime; the accomplice had
other charges pending; the accomplice testified under a grant of
immunity; and the accomplice's time line of the events would have
placed the victim at home at the time of the burglary, contrary
to the victim's account.
More importantly, the appellate court insinuated that the
trial judge was biased contrary to respondent's interests. The
court noted that, during the dispositional hearing, the trial
judge asserted that "he had spent more time on [respondent's]
case and had given [respondent] more opportunities than any
juvenile that had come before him." In re D.R.S., 267 Ill. App.
3d at 625. The trial judge blasted the respondent during the
hearing by stating that he believed respondent was "one of the
most dangerous kids" he had seen for a long time and that he
sincerely hoped respondent would be incarcerated " 'for a very
long period of time for the protection of the persons and
property of the people of this community.' " In re D.R.S., 267
Ill. App. 3d at 625.
The court also considered it inconsistent that the trial
court found sufficient evidence to convict defendant for the
burglary, but not for the theft of a firearm. The court reasoned
that if the accomplice's testimony was the basis for convicting
respondent for the burglary, then it followed that the trial
court should have convicted respondent for the theft of a
firearm. The appellate court opined that these inconsistencies
between the trial court's findings undermined the sufficiency of
the evidence supporting the burglary charge. Thus, in light of
the accomplice's incredibility and the circumstances surrounding
respondent's conviction, the appellate court found that
reasonable doubt remained as to whether the respondent was
guilty.
In Wilson, our supreme court also reversed a defendant's
conviction that was based on uncorroborated accomplice testimony.
Wilson, 66 Ill. 2d at 350. Although the court reasoned that the
State's promise of immunity to the accomplice undermined the
credibility of the accomplice, it also included in its
consideration other circumstances that provided reasonable doubt
as to defendant's guilt. The court noted that it was the
accomplice who instigated the crime. The court also considered
the fact that "not only did the complainant fail to identify the
accused at a lineup, but she identified another man--the same
man--three times." Wilson, 66 Ill. 2d at 350. Moreover, she was
unable to pick defendant from the lineup even though the persons
in the lineup were required to repeat the same words that the
robber said during the crime. The court further considered that
the victim's description of the criminal as being 5 feet 6 inches
tall conflicted with defendant's actual height of 6 feet 1 inch.
Although the instant case lacks direct evidence supporting
the accomplice's assertion as to who performed the criminal act,
as was found in In re D.R.S. and Wilson, those courts did not
view that fact alone as dispositive of whether there remained a
reasonable doubt. Rather, they focussed on the contradictory
evidence affecting the credibility of the accomplices as well as
other circumstances that precluded a finding of guilt beyond a
reasonable doubt. In re D.R.S., 267 Ill. App. 3d at 625, 628-29;
Wilson, 66 Ill. 2d at 350. See also People v. Newell, 103 Ill. 2d 465, 471 (1984) (affirming appellate court's reversal of
defendant's conviction "where the only evidence [was] the
testimony of three accomplices, all convicted felons, one of whom
[said] defendant [was] guilty and two of whom [said] he [was]
not, with no corroboration of either view" (emphasis omitted)).
Unlike the above cases, the circumstantial evidence in this case
supports Aguilera's credibility and corroborates his account of
the events that occurred before and after the shooting.
Moreover, unlike In re D.R.S. in particular, the trial court in
this case lacked even a scintilla of bias against respondent that
would undermine the sufficiency of Aguilera's testimony.
At trial, Fong and Hernandez confirmed that the blue LeSabre
that the police towed after the shooting and that belonged to
Rocha was the same car respondent was in when they saw him
flashing gang signs near the location of the shooting. This
testimony coincides with Aguilera's assertion that respondent,
he, and other individuals drove from Franklin Park to 17th Avenue
near Bloomingdale in Melrose Park, and it also shows that rival
gang activity was a catalyst for the shooting. Similarly, one
reasonably can infer from this evidence that respondent had a
motive for bringing the gun to confront the other gang in the
park.
Likewise, the testimony of Heredia and Fanco confirms
Aguilera's testimony that two groups confronted each other near
the baseball field in Melrose Park. Corroborating Aguilera's
account, Heredia asserted that when Aguilera and respondent's
group met his group, respondent's group began throwing bottles at
them. Heredia also corroborated Aguilera's testimony that it was
at this time someone from Aguilera and respondent's group shot
the victim.
Lastly, Officer Castellans testified that he found five
.380-caliber automatic casings at the scene of the murder. This
testimony supports Aguilera's approximation that respondent fired
about six or seven shots from an automatic gun. Thus, unlike the
circumstances found in the cases respondent cites, the
nonaccomplice testimony and the other evidence presented in this
case substantiated Aguilera's testimony.
In light of the facts in this case and the precedent before
us, we find that a rational trier of fact could find respondent
guilty of first degree murder. Therefore, we reject respondent's
argument that the evidence was insufficient to sustain his
adjudication of delinquency.
B. Whether the Trial Court Admitted Hearsay Evidence
Respondent contends that the trial court erred by admitting
nonverbal hearsay. The following testimony from Officer Scavo is
at contention:
"MR. COMROE [Assistant State's Attorney]:
Did you have occasion to speak with
Mrs. H[.]?
A. Yes.
Q. Did you have occasion to go anyplace with
her?
A. Yes.
Q. Where did you go?
A. 17th Avenue and Fullerton in my
automobile.
Q. Did Mrs. H[.] accompany you?
MR. HUTT [Defense attorney]: Objection.
Hearsay. This is obviously trying to testify ***
as to the declarant's speech by cloaking it in
non-verbal actions.
THE COURT: Hearsay is not admissible but the
officer is testifying [as] to what occurred. The
hearsay objection would be overruled.
MR. COMROE [Assistant State's Attorney]: Where
did you go with Mrs. H[.]?
A. 17th Avenue and Fullerton.
Q. How far is that from the park you just
described?
A. Approximately half a mile.
Q. What occurred when you and Mrs. H[.] got to
the location?
A. She informed that--
MR. HUTT [Defense attorney]: Objection.
MR. COMROE [Assistant State's Attorney]: Just
tell me what she did?
A. We exited the car. She pointed out an area.
Q. What did you then do?
A. I searched the area.
Q. Did you find anything?
A. Yes.
Q. What was that?
A. A pistol.
Q. Where was the pistol found by you?
A. A weeded lot."
To qualify as hearsay, the statement, oral or written, must
be offered to establish the truth of the matter asserted. People
v. Simms, 143 Ill. 2d 154, 173 (1991); R. Ruebner, Illinois
Criminal Trial Evidence 183 (3d ed. 1997), citing, inter alia,
People v. Rogers, 81 Ill. 2d 571 (1980); People v. Murray, 201
Ill. App. 3d 573 (1990). Such statement is "hearsay because its
value as evidence depends on the credibility of an out-of-court
asserter from whom there is no opportunity for cross-
examination." R. Ruebner, Illinois Criminal Trial Evidence 183
(3d ed. 1997). However, "[t]estimony about an out-of-court
statement which is used for a purpose other than to prove the
truth of the matter asserted in the statement is not 'hearsay.' "
Simms, 143 Ill. 2d at 173. A police officer's testimony
regarding another's statements or nonverbal conduct is not
hearsay if it is offered to explain the steps in his
investigation of the crime. Simms, 143 Ill. 2d at 174.
Moreover, "[t]estimony describing the progress of the
investigation is admissible even if it suggests that a
nontestifying witness implicated the defendant." Simms, 143 Ill. 2d at 174.
Accordingly, Officer Scavo's testimony did not contain any
hearsay. The assertion that respondent's mother pointed toward a
weedy lot where Officer Scavo found a pistol was not offered for
the truth of the matter asserted. Rather, it was offered to
describe Officer Scavo's investigation. Thus, we find that
Officer Scavo's testimony did not contain hearsay.
C. Whether the State's Use of a Hearsay Inference During Its
Closing Argument is Reversible Error
Respondent also contends that the State used Officer Scavo's
testimony, which was admitted for a limited purpose, as
substantive evidence during closing argument. Respondent argues
that the State's closing argument drew an improper hearsay
inference from Scavo's testimony to connect the gun to the
respondent. The State argued:
"The chief of police, your Honor, had no
knowledge of that case other than what was
being directed to the Melrose Park Police
Department and went in a vehicle with [Mrs.
H.], your Honor, went into some field to pick
up a .380 caliber Bryco which is, your Honor,
identical to the type -- or is of a caliber,
your Honor, which is capable of firing the
types of cartridges that were expelled from
some sort of automatic at the scene of the
fatal shooting."
Respondent correctly asserts that this argument prompts the
fact finder to draw an improper hearsay inference from Scavo's
testimony. Nevertheless, a reviewing court presumes that, during
a bench trial, the trial court considered only properly admitted
and competent evidence when it made its determinations and that
respondent was not prejudiced. People v. Simac, 161 Ill. 2d 297,
311 (1994); People v. Eddmonds, 101 Ill. 2d 44, 66 (1984).
Based upon a review of both the trial court's findings at
the dispositional hearing and its reiteration of those findings
upon respondent's motion for reconsideration, we find that the
trial court did not rely on any hearsay inferences to find
respondent guilty beyond a reasonable doubt. Rather, the trial
court made it abundantly clear that it relied on Aguilera's
testimony in making its determination. Thus, we conclude that
the above assertions in the prosecutor's closing argument did not
prejudice the respondent. See People v. Wilburn, 263 Ill. App.
3d 170, 181 (1994) ("To merit reversal, a prosecutor's improper
comments must be of substantial magnitude such that they
constituted a material factor in the defendant's conviction").
III. CONCLUSION
Therefore, for the foregoing reasons, we affirm the circuit
court's adjudication of respondent as a delinquent.
Affirmed.
COUSINS, J., concurs.
McNULTY, P.J., dissents.
PRESIDING JUSTICE McNULTY, respectfully dissenting.
The majority acknowledges that Aguilera, the only witness
who identified defendant as the shooter, acted as an accomplice.
When a criminal conviction rests upon the testimony of an
accomplice, that testimony should have the "absolute conviction
of the truth." Wilson, 66 Ill. 2d at 349, quoting People v.
Zaeske, 67 Ill. App. 2d 115, 121 (1966). The conviction of the
truth is conspicuously absent from Aguilera's testimony.
Aguilera first told the court that when he saw defendant on
the evening of September 17, 1995, they did not do anything or go
anywhere, and he saw no crime take place. Then he admitted that
he, defendant, and three others he named drove around Melrose
Park together.
The testimony then becomes nearly incoherent, as Aguilera
said:
"So we got off the car and I seen [defendant], his
brother and Jose. I was with them, go inside the
house.
Q. Then what happened?
A. We were in a fight so we had gathered some
rocks and bottles and later on they had came out so we
had went to the park."
The prosecutor chose not to attempt to clarify this testimony,
although this testimony provided the setting for the assertion
that Aguilera saw defendant shoot at the other gang in the park.
Agiulera's testimony lacks corroboration in any significant
detail. Compare People v. Waln, 169 Ill. App. 3d 264, 272, 523 N.E.2d 1318 (1988); Wilson, 66 Ill. 2d at 350. Aguilera never
mentioned a blue LeSabre, nor did the prosecutor ask the make of
the car Aguilera and defendant rode around in that night.
According to Aguilera's testimony, the three others in the car
did not include defendant's brother or Jose Rocha. Fong and
Hernandez both swore they saw defendant with his brother and
Rocha that evening, around the time Aguilera said he was riding
with defendant. "[C]ontradiction of an accomplice's testimony,
as well as corroboration, is entitled to considerable weight."
People v. Eddington, 129 Ill. App. 3d 745, 473 N.E.2d 103 (1984).
Most significantly, the testimony of Fong and Hernandez
corroborates one of Aguilera's prior statements to police.
Aguilera said he, too, was with Rocha when Rocha drove around
Melrose Park, and then they all went to defendant's home. But in
that statement, Aguilera told police that defendant's brother,
not defendant, shot the gun. The record before the court gives
no indication of why the police rejected that version and
continued questioning Aguilera until he implicated defendant.
The evidence in the record corroborates the statement Aguilera
made to police, implicating defendant's brother, better than it
corroborates his courtroom testimony.
The prosecution elected not to try to show defendant guilty
as his brother's accomplice. Without some evidence to help the
trier of fact determine that the earlier statement implicating
defendant's brother is false, the evidence cannot support the
conviction of defendant beyond a reasonable doubt. Accordingly,
I dissent.
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