People v. Cruzado

1-97-1418

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ELIEZER CRUZADO, ) Honorable
) Loretta Hall Morgan,
Defendant-Appellant. ) Judge Presiding.

JUSTICE HARTMAN delivered the opinion of the court:
Following a jury trial, defendant Eliezer Cruzado[fn1] was
found guilty of first-degree murder and sentenced to a 28-year
prison term. He appeals, raising as issues whether he was denied
his right to a fair trial where (1) he was precluded from
presenting witnesses; (2) the circuit court prohibited him from
presenting evidence of his mental capacity to support his claim of
self-defense; (3) the State failed to disclose to him a prior
conviction of a witness until after trial; and (4) the State
presented testimony of a gang expert.
On September 17, 1993, 17-year-old Avilio Lopez died from a
gunshot wound to the abdomen. Several weeks later, the 15-year-old
defendant was questioned at the police station, where he gave a
statement admitting that he shot Lopez. Prior to trial,
defendant's motions to quash his arrest and suppress his statement
were denied.
At a hearing on defendant's second amended motion to suppress
his statement, Assistant State's Attorney (ASA) Howard Weisman
testified that he advised defendant of his Miranda rights and
interviewed him in the presence of Youth Officer Donald O'Neill and
Detective Reynaldo Guevara. Defendant agreed to have his statement
recorded by a court reporter, a transcript of which he read,
corrected, and signed. Defendant was responsive to questions and
informed ASA Weisman that he could read and write. No threats or
false promises were made to defendant in exchange for his
confession, nor was he confused, scared, or worn down. Detective
Guevara's testimony was substantially similar to that given by ASA
Weisman.
Defendant's mother also testified at that hearing, but stated
that defendant could not read or write, take public transportation
due to his inability to recall the route numbers, or write his own
name. She admitted that she had no problems conversing with her
son and that one of his problems with school was his absenteeism.
Defendant testified that recently he read a third-grade book
and that his reading ability was better at the time of giving
testimony than in October 1993. On the night of the arrest, no one
advised him of his Miranda rights. Further, he was told that he
would be able to see his family again if he agreed to make a
statement. Defendant was afraid because Detective Guevara informed
him that he would spend the rest of his life in jail unless he did
what he was told. He recognized his name on each page of the
confession and admitted signing each page. He denied reading the
statement out loud at the police station because he could "hardly
read," but admitted reading it to himself, comprehending only some
of the words. He understood only half of what ASA Weisman said to
him.
Ruling that defendant was advised of and comprehended his
Miranda rights, the circuit court found that he was "streetwise"
and that there was no evidence to suggest that he did not
understand the situation in which he found himself. Defendant had
received advice of his Miranda rights upon his three previous
arrests, indicating that he was well aware of his predicament. The
court recognized the testimony of Dr. Diane K. Strufe, a
psychologist employed by the Department of Corrections,
establishing that the evaluations by other doctors essentially were
useless because there was no hard data or evidence in any report
prepared by them to substantiate their conclusions. The case
proceeded to trial.
The following trial evidence was adduced. Lopez's friend,
Javier Claudio, testified that he and Lopez were walking toward
Duk's restaurant at Fullerton and Kimball on September 17, 1993, at
11:30 p.m. One-half block away from the restaurant, they
encountered a group of Imperial Gangsters. Claudio flashed the
group the sign of his gang, Orchestra Albany. At Duk's, they saw
an individual nicknamed "Roach," who was a member of the Imperial
Gangsters, although formerly an Orchestra Albany gang member. As
Claudio and Lopez continued walking through the restaurant's
parking lot, Roach made a comment to Lopez and then punched him in
the face. A fist fight ensued near the door of the restaurant.
Claudio heard a 12 or 13-year-old individual scream, "get the gun."
With a gun in his right hand someone, later identified as
defendant, exited Duk's and shot twice at Lopez, who then fell to
the ground holding his stomach.
Diane Shalla and Tomika Vallo, both employed as waitresses at
Duk's, arrived together to begin their shift. They noticed the
fight, heard two gunshots, and turned to see defendant standing in
the doorway of Duk's holding a gun and pointing it at Lopez.
Clutching his stomach, Lopez fell to the ground. When Lopez was
shot, he had nothing in his hands, his arms were at his sides, and
he did not advance toward defendant. The women then saw defendant
flee from the parking lot in a car.
An autopsy revealed that the bullet entered on the left side
of Lopez's abdomen, perforated his small intestine, contused his
large bowel and colon, went through a major blood vessel, and
lodged in his sacroiliac. In the medical examiner's opinion, the
shooter had to be more than two feet away from Lopez, there being
no evidence of close-range firing.
Two or three days later, Claudio identified defendant from
photographs as the shooter. A few weeks later, Shalla and Vallo
identified defendant in a police line-up as Lopez's killer.
Gang crimes specialist Officer George Figueroa testified that
during his 15 years in this job, his duties included interacting
with the Imperial Gangsters gang to identify members and its
hierarchy. In September 1993, the Imperial Gangsters and Orchestra
Albany gangs were aligned under the faction labeled "Folks," but
were experiencing friction due to disagreements over territory and
narcotics sales. Some aspects of gang culture he revealed
included: the gang is made up of leaders and soldiers; soldiers
are required to take orders from leaders; "violations" occur,
ranging from suspension to death, if a member loses drugs, informs
police, or does not aid another member; and behavior is encouraged
that enhances a gang's reputation, such as killing a rival gang
member.
At the close of the State's case, defendant's motion for a
mistrial based upon the admission of evidence pertaining to gang
affiliation was denied. Defendant's motion to have this evidence
stricken was denied as well.
Defendant then testified in his own defense. On the evening
of September 17, 1993, he was looking for his sister who, he
learned, might be at Duk's. On his way there, he encountered
fellow gang member, Miguel Cruz, who handed him a gun with
instructions to give it to "Flip," the Imperial Gangsters chief.
He took the gun in order to avoid the "violation" of being beat up
by the gang.
Entering Duk's, defendant, from inside the restaurant,
observed Roach and Lopez fighting. Defendant later went outside
"to see what was going on." He was not required to aid Roach.
Roach fell to the ground and Lopez turned and began walking toward
defendant. Lopez was "reaching in his back and in his pocket."
Fearing that Lopez had a gun or a knife, defendant pulled the gun
out of his pocket, waited 30 seconds, but Lopez kept walking in his
direction so defendant fired the gun.
Defendant knew of Lopez's reputation for violence: one year
before this incident, defendant watched Lopez punch and kick a man
in the face, who declined to buy Lopez a beer.
The jury found defendant guilty. Defendant's post-trial
motions and new trial motion were denied and he was sentenced to 28
years' imprisonment.
I
Defendant first contends that he was denied his right to a
fair trial because he was precluded from presenting evidence of
Lopez's violent behavior to support his claim of self-defense.
The admission of evidence is within the sound discretion of
the circuit court, and will be upheld absent a clear showing of
abuse of discretion and manifest prejudice. People v. Lucas, 151 Ill. 2d 461, 489, 603 N.E.2d 460 (1992) (Lucas); People v. Galvan,
244 Ill. App. 3d 298, 302-03, 614 N.E.2d 391 (1993) (Galvan). When
self-defense is raised, testimony concerning the victim's
reputation and character may be offered for two distinct purposes.
People v. Lynch, 104 Ill. 2d 194, 200, 470 N.E.2d 1018 (1984)
(Lynch); People v. Hanson, 138 Ill. App. 3d 530, 537, 485 N.E.2d 1144 (1985) (Hanson); People v. Buchanan, 91 Ill. App. 3d 13, 16,
414 N.E.2d 280 (1980).
"One purpose of the testimony may be to show
the reasonableness of the defendant's state of
mind in acting in self-defense; a second
purpose may be to support the defendant's
testimony that the deceased was the aggressor.
[Citation.] These distinct purposes serve
different functions and carry different
requirements as to the defendant's knowledge
of the deceased's character and reputation."
Buchanan, 91 Ill. App. 3d at 16.
If the testimony is offered to show defendant's state of mind,
defendant must have known the information about the victim when the
alleged self-defense occurred; if the testimony is offered as
evidence of the victim's violent nature to establish that the
victim was the aggressor, defendant is not required to possess
knowledge of the victim's reputation. People v. Ware, 180 Ill.
App. 3d 921, 927, 536 N.E.2d 713 (1988); Buchanan, 91 Ill. App. 3d
at 16.
In the instant case, Lopez had two prior arrests. His first
arrest was in November 1992, for creating a public disturbance.
This led to a protective pat-down search which ultimately revealed
a gun and resulted in Lopez also being charged with misdemeanor
unlawful possession of a firearm. He also was arrested in
September 1993, for disorderly conduct for yelling and displaying
gang signs. Defendant attempted to elicit testimony from police
officers that they had observed Lopez "commit acts of unlawful use
of weapons, flashing gang slogans, disorderly conduct and gang
action," which was denied by the circuit court. Notwithstanding
his own testimony regarding his knowledge of Lopez's past violent
behavior, defendant claims that had the jury heard about Lopez's
reputation for violence, the outcome of the trial would have been
different. The pertinent inquiry is whether the information that
surrounded Lopez's arrests was indicative of his violent nature,
thereby supporting admission of those arrests into evidence.
Defendant cites several cases which all stand for the
proposition that the circuit court improperly excluded evidence of
violent behavior on the part of the victim where the defendants
claimed self-defense. See, e.g., People v. Booker, 274 Ill. App.
3d 168, 653 N.E.2d 952 (1995); Hanson, 138 Ill. App. 3d 530; People
v. Gossett, 116 Ill. App. 3d 655, 451 N.E.2d 280 (1983). The State
does not dispute that evidence of violent behavior may be
admissible to show that Lopez was the aggressor, but argues that
the evidence here was not probative of a violent nature.
Lopez' first arrest resulted from his creating a public
disturbance by yelling and, upon a protective pat down, a hand gun
was found in his possession. A charge for unlawful possession of
a firearm does not show a propensity for violence. People v.
Costillo, 240 Ill. App. 3d 72, 82, 608 N.E.2d 100 (1992). See
People v. Ellis, 187 Ill. App. 3d 295, 301, 543 N.E.2d 196 (1989).
Additionally, there is no evidence as to what Lopez was doing other
than yelling, which by itself is no indication of violent behavior.
See People v. Huddleston, 176 Ill. App. 3d 18, 28, 530 N.E.2d 1015
(1988).
The second arrest was for disorderly conduct as a result of
Lopez gesturing gang signs, shouting gang slogans, and displaying
gang colors. There is no evidence showing that this activity
constituted violent behavior by Lopez. An arrest for disorderly
conduct does not by itself establish a violent nature. People v.
Baer, 35 Ill. App. 3d 391, 396, 342 N.E.2d 177 (1976). Because this
evidence does not tend to show that Lopez had a violent nature, it
had no probative value in determining who the aggressor was in the
altercation.[fn2] People v. Lovelace, 251 Ill. App. 3d 607, 622,
622 N.E.2d 859 (1993).
For the foregoing reasons, the circuit court did not abuse its
discretion in debarring evidence of Lopez's alleged violent
behavior.
II
Defendant next asserts that he was denied a fair trial because
he was not permitted to present medical evidence of his limited
intellectual ability as relevant to his intent and reasonable belief
in using self-defense.
The admission of evidence rests within the discretion of the
circuit court; its decision will not be reversed unless such
discretion has been abused resulting in manifest prejudice to
defendant. Lucas, 151 Ill. 2d at 489; Galvan, 244 Ill. App. 3d at
302-03.
Defendant maintains that the medical evidence demonstrates he
had a history suggestive of attention-hyperactive disorder, tested
below third-grade level, identified letters and not words, had
limited cognitive ability with possible co-existing brain damage,
and was borderline mentally retarded. Defendant attempted to
present the opinions of Dr. Albert Stipes and Dr. Diane Strufe to
support his claimed intellectual infirmities. To determine whether
the circuit court abused its discretion in precluding this evidence,
a review of the doctors' proffered opinions is necessary.
Dr. Stipes reported the results of his evaluation of defendant
to the circuit court via a letter. This evaluation was undertaken
in anticipation of a pretrial hearing to determine whether defendant
was capable of understanding his rights under Miranda. Dr. Stipes
wrote that defendant showed no evidence of psychosis, mood disorder,
nor any significant intellectual deficit, but that defendant had a
history of a learning disability and possessed borderline
intellectual function. Dr. Stipes was of the further opinion that
"there is no evidence of any mental disease or defect which would
have rendered him unable to form any intent at the time of the
offense."
Dr. Strufe also evaluated defendant and subsequently testified
at the motion to suppress regarding her findings. Her own
evaluation revealed that defendant had a borderline IQ of 71. His
major problem in school was that he did not attend or, when he did
attend, he did not pay attention. His absenteeism, lack of
attention, and bad attitude all contributed to his reading and
spelling being below the third-grade level.
Dr. Strufe conducted her own tests to determine the
intellectual capability of defendant and also examined any reports
and evaluations contained in his record. Only two evaluations
existed: Dr. Daniel Shift's psychiatric evaluation, based only upon
one interview; and Dr. Asher Levy's psychological evaluation. Dr.
Strufe found nothing in Dr. Shift's interview that she could use in
making her determination. Additionally, although Dr. Shift
indicated that defendant suffered from attention deficit disorder,
Dr. Strufe found no indications of this disorder and there was
nothing in this doctor's report to support his mere conclusion. Dr.
Levy's evaluation noted that defendant showed indications of organic
brain damage, however, Dr. Strufe testified that no
neuropsychological tests existed to substantiate such a finding.
Finally, no test scores were reported in defendant's records to
indicate any limited cognitive abilities.
Neither Dr. Stipes' nor Dr. Strufe's testimony supports
defendant's claim of attention hyperactive disorder, brain damage,
or borderline mental retardation. Dr. Strufe's testimony
illustrated that the claim of attention deficit disorder was nothing
more than an unsubstantiated notation in defendant's records, as was
the notation of brain damage. Because defendant did not intend to
present Drs. Shift or Levy to explain their evaluations, nothing
existed beyond their written reports and unsupported notations to
reveal the evidentiary bases for their findings.
Similarly, defendant's claim of mental retardation also had no
basis in fact; no one testified that he was mentally retarded.
Further, rather than support defendant's argument, Dr. Stipes
specifically stated that defendant had no significant intellectual
deficit or mental defects despite his learning disability and
borderline IQ. Without any evidentiary bases to support defendant's
claims of limited intellectual ability, the unsubstantiated
notations in his medical record and statements by his counsel were
nothing more than suggestions and, therefore, were properly excluded
as not relevant.
Lastly, defendant claims that evidence of his below third-grade
reading level should have been admitted as well. This information
may have been relevant to whether he waived his Miranda rights,
however, defendant did not demonstrate how a low reading level
relates to his state of mind for a claim of self-defense.
For the foregoing reasons, defendant's insistence that the
circuit court abused its discretion in forestalling evidence of his
limited intellectual capacity fails.
III
Defendant also contends that he was denied a fair trial because
the State failed to disclose a criminal conviction of one of its
witnesses, Tomika Vallo.
The prosecution is required to disclose to the defense evidence
that is material to defendant's guilt or innocence. Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194 (1963) (Brady); People v.
Sims, 167 Ill. 2d 483, 507, 658 N.E.2d 413 (1995) (Sims). This
requirement has been codified in Supreme Court Rule 412(c) (134 Ill.
2d R. 412(c)) and includes the disclosure of prior criminal
convictions of individuals the State intends to call as witnesses
at trial. Nevertheless, failing to comply with these discovery
requirements does not always require a new trial. People v. Harris,
123 Ill. 2d 113, 151, 526 N.E.2d 335 (1988). To be determined is
whether the undisclosed evidence was material, e.g., "when it would
tend to raise a reasonable doubt of the defendant's guilt." Sims,
167 Ill. 2d at 507. The appropriate inquiry "is not whether the
evidence might have helped the defense, but whether it is reasonably
likely that it would have affected the outcome of the case." Sims,
167 Ill. 2d at 507. Applying these principles to defendant's
contentions, the State's discovery violations did not pertain to
material evidence that would have affected the outcome of the trial
and, therefore, did not prejudice defendant.
Absent evidence of Vallo's conviction, defendant argues that
the jury was unable to weigh the credibility of the witnesses. The
State acknowledged that it failed to disclose Vallo's prior
conviction, but argues that her testimony was cumulative and,
therefore, no prejudice resulted. Claudio, Shalla, and Vallo
testified on behalf of the State. The State maintains that even if
Vallo had been impeached with her prior conviction, the jury heard
substantially similar testimony from the two other witnesses. A
review of the testimony, previously set forth in this order, reveals
that their testimony is so similar to each other's, and so different
from defendant's recount of the events, that evidence of Vallo's
conviction would not have affected the outcome in this case. Only
defendant's account of the events differs significantly from the
State's witnesses. Contrary to defendant's testimony, all three
State's witnesses stated that Lopez had nothing in his hands and did
not walk toward defendant. Further, Shalla and Vallo maintained
that Lopez's arms were at his sides and Claudio testified that his
fists were in front of him; none of them testified that Lopez was
reaching behind his back, as defendant asserted.
The substantially similar testimony of these three witnesses
constitute overwhelming evidence against defendant. Consequently,
evidence of Vallo's conviction was not material because it would not
have tended to raise a reasonable doubt of defendant's guilt.
Moreover, Claudio's tainted character was introduced. His prior
conviction, as well as his gang affiliation, was exposed; yet, the
jury still found defendant guilty. In light of the foregoing, it
is not reasonably likely that Vallo's conviction would have affected
the outcome of the case.
Significantly, the circuit court found that the State's failure
to disclose the Brady material was not deliberate. Although this
omission may not be condoned, there is nothing in the record to
contradict the court's determination. Even defense counsel observed
that he did not believe the prosecutor was aware of the conviction.
For the foregoing reasons, defendant was not denied a fair
trial despite the State's failure to disclose a witness' prior
conviction.
IV
Defendant lastly argues that the circuit court abused its
discretion by permitting gang expert, Officer Figueroa, to testify.
In order to preserve an issue for appeal, a party must have
moved in limine or objected at trial and raised the issue in a post-
trial motion. People v. Hudson, 157 Ill. 2d 401, 434-35, 626 N.E.2d 161 (1993); People v. Boclair, 129 Ill. 2d 458, 476, 544 N.E.2d 715
(1989). Defendant did argue a motion in limine to bar evidence of
defendant's gang membership; this issue has not been waived, as the
State contends.
On the merits, defendant argues that Officer Figueroa's
testimony detailing some aspects of gangs should have been precluded
because it was not necessary to aid the jury in understanding
Claudio's testimony. Further, he claims that the evidence was not
relevant because there was no connection between defendant's motive
and the officer's testimony. He also insists that any probative
value of the gang-related evidence was outweighed by its prejudicial
effect. The State responds that Officer Figueroa's testimony was
necessary to explain defendant's motive in leaving the safety of the
restaurant and shooting Lopez when defendant ostensibly was not
involved in the fight.
Police testimony "regarding gang activity is proper when (1)
the officer's testimony qualifies as expert opinion, (2) the
testimony is relevant, and (3) the prejudicial effect of the opinion
does not outweigh its probative value." People v. Langford, 234
Ill. App. 3d 855, 858, 602 N.E.2d 99 (1992).
With respect to the first element, defendant does not take
issue with the officer's knowledge of or experience with gangs, but
complains that his testimony did not aid the jury because it was not
beyond the understanding of an ordinary person. Officer Figueroa
explained that gang members must be loyal and are expected to come
to the aid of a fellow gang member. Defendant's gang is comprised
of leaders and soldiers; the soldiers take orders from the leaders.
"Violations," such as not coming to the aid of another gang member,
result in punishment ranging from suspension to death. Further,
behavior such as killing a rival gang member or enhancing the gang's
reputation is encouraged.
There has been no showing that the average layperson has any
understanding of the inner-workings of gangs as set forth above, or
of the jury's common knowledge of them. Officer Figueroa's opinion
was helpful to the factfinders, thereby qualifying his testimony as
"expert."
Next, Officer Figueroa's testimony was highly relevant in
explaining defendant's motive for shooting Lopez. Relevant evidence
is that which tends to prove or disprove a disputed fact or render
the matter in issue more or less probable. People v. Mason, 274
Ill. App. 3d 715, 722, 653 N.E.2d 1371 (1995) (Mason). The gang-
related evidence tended to render defendant's claim of self-defense
less probable and establish that defendant had a reason to shoot
Lopez without acting in self-defense.
Despite defendant's contention otherwise, there was a
connection between defendant's motive for shooting Lopez and the
evidence of gang structure, clothing, beliefs and habits; Officer
Figueroa's testimony tended to show that the shooting was gang
motivated. He stated that at the time of the shooting, there was
friction between the normally-aligned Imperial Gangsters and
Orchestra Albany due to disputes over territory and narcotics sales.
This explained why Roach and Lopez were fighting in the first place
and why defendant involved himself in the altercation. The gang
structure shows why defendant had a gun in his pocket. The loyalty
among gang members, the encouragement of behavior such as killing
a rival gang member, and the "violations" that occur if a member
does not aid another all demonstrate why defendant would leave the
safety of the restaurant and shoot Lopez, not Roach. Absent this
background information, the jury would be unable to mesh the State's
theory of the case with anything beyond mere supposition. Because
Officer Figueroa's testimony tended to disprove self-defense and
show motive, it was relevant and properly admitted.[fn3]
As to the third element, the gang-related evidence was not more
prejudicial than probative. Courts acknowledge that a strong
prejudice against street gangs may exist, particularly in
metropolitan areas. People v. Patterson, 154 Ill. 2d 414, 458, 610 N.E.2d 16 (1992). Evidence of gang affiliation, gang history, and
gang structure is generally admissible nevertheless, although it may
prejudice defendant, if it is relevant to the crime. People v.
Fort, 248 Ill. App. 3d 301, 315, 618 N.E.2d 445 (1993). Such
evidence may be received to provide motive for an otherwise
inexplicable act. Fort, 248 Ill. App. 3d at 315.
Because the gang-related evidence was relevant to establish
motive and others were shown to be gang members, Officer Figueroa's
testimony was more probative than prejudicial.
Finally, defendant's assertion that the case sub judice is
similar to Mason, 274 Ill. App. 3d 715, is misplaced. The State's
theory in Mason was that defendant and the victim were members of
the same gang and, therefore, evidence of defendant's affiliation
with the gang and its organizational structure was relevant to
demonstrate his possible motive for shooting the victim. Mason, 274
Ill. App. 3d at 722. The Mason court found that facts about gang
rivalries, presentment, graffiti, tattoos, and drug sales were
irrelevant and prejudicial to the State's theory of the case.
Mason, 274 Ill. App. 3d at 722.
Unlike the defendant in Mason, defendant and Lopez were not
members of the same gang; however, defendant and Roach, who was
involved in a physical altercation with Lopez, were both Imperial
Gangsters. The rivalry between defendant's gang and Lopez's gang,
coupled with defendant's loyalty to Roach, make the gang-related
information relevant to the State's theory of the case. Because
this evidence is crucial in establishing motive, it is more
probative than prejudicial.
Defendant's arguments to the contrary, the circuit court did
not abuse its discretion in admitting Officer Figueroa's testimony
about gang culture.
For the foregoing reasons, defendant's conviction and sentence
cannot be disturbed and, therefore, must be affirmed.
Affirmed.
HOURIHANE, P.J., and HOFFMAN, J., concur.
[fn1] Both parties refer to defendant in their briefs as
"Elizer" Cruzado. At the hearing on the motion to suppress
defendant's statement, testimony from the Assistant State's Attorney
who took the statement revealed that defendant altered the spelling
of his name on his signed confession from "Elizer" to "Eliezer,"
therefore, we will employ the latter spelling.
[fn2] Contrary to defendant's argument, the circuit court did
not rely on People v. Huddleston, 176 Ill. App. 3d 18, 530 N.E.2d 1015 (1988), to exclude the information surrounding the victim's
arrests, but found that the circumstances of defendant's arrests
were not of the violent nature contemplated by the Lynch court.
[fn3] The officer's testimony pertaining to gang clothing
may be the only questionably relevant evidence. An examination of
the record, however, reveals that defense counsel elicited testimony
regarding gang clothing from Claudio before the State garnered such
information from Officer Figueroa. In light of this fact, the
admission of the officer's knowledge of gang attire merely affirmed
Claudio's statement.