People v. Rodriguez

No. 2--96--0708

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 95--CF--1680
)
v. )
)
JOSE RUBEN RODRIGUEZ, ) Honorable
) Christopher C. Starck,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:
Defendant, Jose Ruben Rodriguez, was indicted by a grand jury
with one count of aggravated discharge of a firearm (720 ILCS 5/24-
-1.2(a)(2) (West 1994)) and one count of unlawful use of weapons
(720 ILCS 5/24--1(a)(4) (West 1994)). Following a jury trial,
defendant was found guilty only on the latter count. Defendant was
sentenced to 24 months' probation. We affirm.
At trial, Rosa Rodriguez (Rosa R.), defendant's wife,
testified that she received a telephone call at 2:30 a.m. on June
24, 1995, concerning her 16-year-old daughter, Rosa Gallegos (Rosa
G.). Rosa R. was informed that Rosa G. had not returned to Rosa
R.'s mother's house located at 315 South Victory Street in
Waukegan, Illinois. Rosa R. and defendant were worried, so they
drove over to her mother's residence. At 4 a.m., a vehicle
approached the residence. While Rosa R. and defendant were outside
the residence, she observed her daughter exit the vehicle.
Defendant was upset. He approached the vehicle and asked the
driver to stop the vehicle. The vehicle immediately took off.
Defendant got into the family vehicle, a brown, four-door sedan.
Rosa R. took her daughter inside the residence. Rosa R. did not
see defendant drive off in the family vehicle. She observed that
defendant entered the residence two to three minutes later.
According to Rosa R., defendant owns a handgun, but she did not see
it on defendant's person that evening.
Rosa Gallegos, defendant's stepdaughter, testified that she
was riding in a vehicle at 4 a.m. on June 24, 1995, with two
friends, Michael Rodriguez and Rogelio Montoya. The vehicle pulled
up in front of a house next to her grandmother's residence and she
exited the vehicle. Defendant walked toward the vehicle. She and
her mother entered the residence. She observed that defendant
entered the residence one to two minutes later. She did not see a
gun on defendant's person that evening.
Rosa G. further testified to giving a written statement to the
police on July 11, 1995. According to that statement, defendant
got into their family vehicle and drove off after the other
vehicle. At trial, however, Rosa G. testified that she never saw
defendant drive after the other vehicle because she was already in
her grandmother's residence with her mother.
Denise Beausoleil testified that she resided at 343
Westmoreland Avenue in Waukegan. She was outside walking her dog
at 4 a.m. on June 24, 1995. She observed two vehicles speeding
north on Westmoreland Avenue. The first vehicle was smaller and
darker than the second vehicle, a sedan-type vehicle. As they
approached Grand Avenue, she heard tires screech and what sounded
like four gunshots. She then went inside and telephoned the
police.
William Brazil testified that he was employed as an officer
with the Waukegan police department. On June 24, 1995, at
approximately 4:05 a.m., he was dispatched to the intersection of
Grand Avenue and Westmoreland Avenue. He did not find anything
which would indicate that gunshots had been fired at that location.
Jose Gilberto Rodriguez (Jose) testified that at approximately
1 p.m. on July 3, 1995, he was visited at his home by defendant.
Defendant complained that Jose's son, Michael Rodriguez, had been
out with defendant's stepdaughter at 4 a.m. About five minutes
into their conversation, Michael entered the residence. After
further conversation, defendant told Jose, "I am a sharpshooter."
David Yarc testified that he was employed as a detective with
the Waukegan police department. Pursuant to an investigation about
gunshots being fired at the intersection of Grand Avenue and
Westmoreland Avenue, he interviewed Rosa G. on July 11, 1995. He
asked her to prepare a written statement about the events of June
24, 1995. According to the statement, when Yarc asked Rosa G.,
"What car did [defendant] leave in?" she responded, "Our family
car, a four door brown car."
Michael Rodriguez testified under a grant of immunity from the
State. He testified that at 4 a.m. on June 24, 1995, he was
driving his father's red Mustang with Rogelio Montoya and Rogelio's
girlfriend, Rosa G. He dropped Rosa G. off at a residence on
Victory Street. He drove away as a man was saying something to
him. About one mile from that residence, he noticed a four-door
vehicle following him. The two vehicles drove along Westmoreland
Avenue toward Grand Avenue, where Michael heard loud popping
noises. The vehicle behind his then turned away.
Michael also testified that on July 3, 1995, he went to his
father's house and defendant was there. Michael stated to his
father, "That's the man that shot me." Michael reported the events
of June 24, 1995, to the police on July 4, 1995.
Michael further testified to giving a written statement to the
police on July 6, 1995. According to that statement, defendant was
driving the vehicle that followed his on June 24, 1995. According
to the statement, when Michael stopped his vehicle at the stop sign
at the intersection of Westmoreland Avenue and Grand Avenue,
defendant came up next to him and pointed a gun at him. As Michael
drove through the intersection, he heard at least six gunshots. In
the statement, Michael claimed that defendant approached him the
following day and threatened to shoot him. At trial, however,
Michael testified that he never saw the driver of the other
vehicle. He also testified that defendant never approached him the
next day and threatened to shoot him.
Following the trial, the jury found defendant guilty of
unlawful use of weapons. Defendant was sentenced to 24 months'
probation. Defendant filed a timely appeal.
On appeal, defendant raises four issues for our review. He
contends that (1) the trial court erred in admitting the hearsay
testimony of Jose and Michael; (2) the trial court erred in
admitting the prior written statements of Rosa G. and Michael as
substantive evidence; (3) the trial court erred in granting the
State's motion in limine to prohibit the introduction of evidence
of the alleged gang involvement of the State's witnesses; and (4)
the State failed to establish his guilt beyond a reasonable doubt.
I.
Defendant's first contention on appeal is that the trial court
erred in admitting the hearsay testimony of Jose and Michael.
The State argues that defendant waived this issue for failing
to object to the testimony of Jose and Michael in question at trial
(see People v. Stewart, 105 Ill. 2d 22, 56 (1984)) and for failing
to raise an objection to the testimony in his post trial motion
(see People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Upon review of
the record, we find that defendant failed to object to the
testimony of Jose and Michael at trial. Defendant also failed to
object to the testimony of Jose in his post trial motion.
Notwithstanding waiver, we elect to address the issue. See People
v. Roberts, 263 Ill. App. 3d 348, 350 (1994) (the waiver rule is a
limitation on the parties and not on the court).
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted and is generally inadmissible unless
it falls within an exception to the rule. Laughlin v. France, 241
Ill. App. 3d 185, 192 (1993).
A.
Defendant initially contends that the trial court erred in
admitting the hearsay testimony of Jose as to his conversation with
defendant on July 3, 1995, concerning events on the date in
question.
During direct examination of Jose by the prosecutor, the
following colloquy ensued:
"Q. Specifically, what did you say?
A. I told him, I said, 'You can't do that*** you can
hurt somebody.'
* * *
Q. After your statement, what did this defendant then
say to you?
A. The Defendant stated to me, I asked him if he done
it. He hesitated a little bit. Later on he come up about a
minute later, he told me, 'I am a sharp shooter.'
* * *
Q. And after the hesitation, that is when this
defendant responded to you, 'I am a sharp shooter'?
A. Yes."
We find the testimony elicited from Jose was offered to prove the
truth of the matter asserted, that defendant was the person
responsible for firing the gunshots at the vehicle being driven by
Michael on June 24, 1995. Accordingly, such testimony was hearsay
and inadmissible unless it fell within an exception to the hearsay
rule.
The State argues that the hearsay testimony was properly
admitted as an admission by defendant. We disagree. An admission
is a statement or conduct from which guilt may be inferred, when
taken with other facts, but from which guilt does not necessarily
follow. Stewart, 105 Ill. 2d at 57. Taken with the other facts of
this case, we do not find the statement to be one from which guilt
may have been inferred.
B.
Defendant further contends that the trial court erred in
admitting the hearsay testimony of Michael concerning the
conversation he interrupted between his father and defendant on
July 3, 1995.
During direct examination of Michael by the prosecutor, the
following colloquy ensued:
"Q. Didn't you remark to your father, 'That's the man
that shot me'?
A. Yes, I did say that."
Citing People v. Rogers, 81 Ill. 2d 571 (1980), the State contends
that Michael's testimony was properly admitted because it
constituted a previous identification of defendant as the shooter.
The State's reliance on Rogers is misplaced. Rogers provides that
the hearsay rule does not operate to bar the admission of
extrajudicial identification where such evidence is used in
corroboration of an in-court identification, not as substantive
evidence. Rogers, 81 Ill. 2d at 579. Here, the identification
testimony was admitted as substantive evidence that defendant was
the person responsible for firing the gunshots at the vehicle being
driven by Michael on June 24, 1995. Accordingly, the admission of
such testimony was improper.
For the above reasons, we conclude that the trial court erred
in admitting the hearsay testimony of Jose and Michael. However,
we find the error to be harmless. This court has previously stated
that the admission of hearsay is not reversible error if there is
no reasonable probability that the jury would have acquitted the
defendant if the hearsay testimony had been excluded, such as where
properly admitted evidence proves the same matter or there is
overwhelming evidence of the defendant's guilt. People v. Cordero,
244 Ill. App. 3d 390, 392 (1993). Such is the case here, where
other evidence served as proof of defendant's guilt.
II.
Defendant's second contention on appeal is that the trial
court erred in admitting the prior written statements of Rosa G.
and Michael as substantive evidence under section 115--10.1 of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--10.1
(West 1994)).
Ordinarily a party may only use a prior inconsistent statement
for impeachment. People v. Salgado, 263 Ill. App. 3d 238, 247
(1994). However, section 115--10.1 of the Code permits a party to
use a witness' prior inconsistent statement as substantive evidence
under the circumstances provided therein. Section 115--10.1 of the
Code provides, in pertinent parts:
"In all criminal cases, evidence of a statement made by
a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at
the hearing or trial, and
(b) the witness is subject to cross-examination
concerning the statement, and
(c) the statement
***
(2) narrates, describes, or explains an event or
condition of which the witness had personal knowledge,
and
(A) the statement is proved to have been
written or signed by the witness[.] 725 ILCS
5/115--10.1 (West 1994).
At issue is whether Rosa G. and Michael had "personal knowledge" as
used in subsection (c)(2). "Personal knowledge" means that the
witness whose prior inconsistent statement is being offered into
evidence must have actually seen the events that are the subject of
the statement. People v. Cooper, 188 Ill. App. 3d 971, 973 (1989).
A.
Defendant initially contends that the trial court erred in
admitting the prior written statement of Rosa G. because she lacked
"personal knowledge" as used in subsection (c)(2).
At trial, Rosa G. testified that, when she arrived at her
grandmother's residence on June 24, 1995, defendant walked toward
the vehicle in which she was riding. She further testified that
she exited the vehicle and went directly inside the house.
Consequently, she did not see whether defendant got into another
vehicle. She next saw defendant inside the house. Over defense
counsel's objection, Rosa G.'s written statement of July 11, 1995,
was thereafter admitted into evidence. The written statement
provided, in part, "I went inside the house with my mother, and I
know--my mother. All I know is that [defendant] got in the car and
went after them."
Defendant argues that Rosa G. did not have personal knowledge
of whether defendant followed after Michael in the family car.
Defendant cites the fact that Rosa G. testified at trial that she
did not observe whether defendant chased after the vehicle.
Rather, she testified that her prior written statement indicates
that defendant chased after the vehicle based upon what Michael
told her. Citing Cooper, defendant contends that the personal
knowledge required by the statute is not that which is acquired by
being told something. Cooper, 188 Ill. App. 3d at 973. However,
the portion of Rosa G.'s testimony referring to being told of
defendant's actions by Michael was stricken on hearsay grounds.
Regardless, in meeting the requirement that the prior statement be
based on personal knowledge, we hold that the prior statement may
be admitted in limited circumstances even though the witness
declares that the prior statement was based upon what the witness
had been told. See People v. Fauber, 266 Ill. App. 3d 381 (1994).
In Fauber, the trial court admitted the prior inconsistent
statement of a witness, ruling that the determination of whether
the statement was from firsthand information must be determined
from the face of the statement and not from the later testimony of
the recanting witness. Fauber, 266 Ill. App. 3d at 390. The prior
statement at issue in Fauber was of a witness who testified to
being told of certain events, but who had been present at the time
the events occurred. The Appellate Court, Fourth District,
affirmed the admission of the witness' prior inconsistent
statement. Fauber is therefore distinguishable from Cooper, where
the prior statement at issue was of a witness who was not present
at the time the events occurred.
In the instant action, while Rosa G. testified that she was
told of defendant's pursuit of the vehicle, her written statement
to the police indicated that she was speaking from information she
gained from her personal vantage point in front of her
grandmother's residence. Thus, we find she possessed the requisite
personal knowledge of the events in her statement despite her later
denial of the same at trial. We find that the trial court properly
admitted the prior inconsistent statement as substantive evidence.
B.
Defendant further contends that the trial court erred in
admitting the prior written statement of Michael because he lacked
"personal knowledge" as used in subsection (c)(2).
At trial, Michael testified that he did not see the driver of
the vehicle that followed him on June 24, 1995. Michael's written
statement of July 6, 1995, was thereafter admitted into evidence.
The written statement provided that Michael saw defendant driving
the vehicle that was chasing his and that Michael saw defendant
pointing a gun at him. Michael further testified at trial that his
identification of defendant was based on what Rogelio had told him.
Defendant argues that Michael did not have personal knowledge
of whether defendant was the driver of the vehicle that pursued him
or whether defendant fired the shots that he heard. Defendant
cites the fact that Michael testified at trial that he did not
observe whether defendant was the driver of the vehicle. He
testified at trial that his prior written statement indicates that,
based upon what Rogelio told him, defendant chased after the
vehicle and pointed a gun toward him.
In the instant action, Michael's written statement to the
police indicated that he was speaking from information he gained
from his personal vantage point while driving his vehicle away from
the residence. Thus, we find he too possessed the requisite
personal knowledge of the events in his statement despite his later
denial of the same at trial. We find that the trial court properly
admitted the prior inconsistent statement as substantive evidence.
III.
Defendant's third contention on appeal is that the trial court
improperly granted the State's motion in limine to exclude evidence
of the alleged gang involvement of the State's witnesses.
In this case, Michael testified that he drove away from the
residence at 315 South Victory Street after dropping off Rosa G.
About one mile down the road, he noticed that he was being followed
by another vehicle. As the two vehicles proceeded to and through
the intersection of Westmoreland Avenue and Grand Avenue, Michael
testified that he heard loud popping noises and that the vehicle
pursuing his then turned away. Denise Beausoleil testified that
she saw two vehicles speed along Westmoreland Avenue toward the
subject intersection and heard what sounded like gunshots. Unlike
Denise, neither Michael nor Rogelio, the occupants of the first
vehicle, immediately reported the incident to the police.
Defendant contends that these circumstances were strikingly similar
to gang related drive-by shooting incidents, providing an alternate
explanation for the incident in which he is accused of having
played a part. Hence, defendant contends that the trial court
erred in granting the State's motion in limine to prohibit
questions concerning the alleged gang involvement of Michael.
Evidence of gang membership, like other evidence, is
admissible if relevant to an issue in dispute, and its probative
value is not substantially outweighed by its prejudicial impact.
People v. Johnson, 159 Ill. 2d 97, 118 (1994). A trial court may
reject offered evidence on the ground of irrelevance if it has
little probative value due to its remoteness, speculativeness,
uncertainty, or its possibly unfair prejudicial nature. People v.
Harris, 262 Ill. App. 3d 35, 47 (1994). In Harris, the trial court
limited inquiry of witnesses' gang membership. Notwithstanding
defendant's characterization of the evidence presented, the trial
court found no competent evidence in the record to show that the
shooting involved therein was in any way induced by prior gang
activity. This court affirmed the ruling of the trial court.
Here, in reaching its decision to bar evidence of alleged gang
activity, the trial court found the evidence to be lacking in
relevance. Having reviewed the record, we find the relationship
between gang membership and this shooting incident to be
speculative at best. Thus, we agree with the trial court's
decision to grant the State's motion in limine.
IV.
Defendant's final contention on appeal is that the State
failed to establish his guilt beyond a reasonable doubt.
A conviction must be based upon proof beyond a reasonable
doubt. People v. Foules, 258 Ill. App. 3d 645, 653 (1993). The
reviewing court's duty is not to ask itself whether it believes the
evidence establishes guilt, but whether the evidence viewed in a
light most favorable to the prosecution would allow any rational
trier of fact to find the essential elements of the crime proved
beyond a reasonable doubt. Foules, 258 Ill. App. 3d at 653. A
reviewing court may not substitute its judgment for that of the
trier of fact on questions involving the weight of the evidence or
the credibility of the witnesses. People v. Winfield, 113 Ill.
App. 3d 818, 826 (1983). The reversal of a conviction is required
only where the defendant can show that the evidence is so
unsatisfactory or improbable as to create a reasonable doubt of the
defendant's guilt. People v. Murray, 194 Ill. App. 3d 653, 656
(1990).
Defendant was convicted of unlawful use of weapons (720 ILCS
5/24--1(a)(4) (West 1994)). A person commits the offense of
unlawful use of weapons pursuant to subsection (a)(4) when he
knowingly "[c]arries or possesses in any vehicle or concealed on or
about his person except when on his land or in his own abode or
fixed place of business any pistol, revolver, stun gun or taser or
other firearm." 720 ILCS 5/24--1(a)(4) (West 1994).
Applying the above principles to the case at bar, despite the
lack of physical evidence, we conclude that the evidence is
sufficient to sustain defendant's conviction of unlawful use of
weapons. According to Rosa G.'s written statement, Rosa G. was
dropped off around 4 a.m. at her grandmother's house by Michael.
Defendant took off in the family car in pursuit of the vehicle
driven by Michael. Denise testified that she was walking outside
shortly after 4 a.m., that she saw two vehicles speeding toward the
intersection of Westmoreland Avenue and Grand Avenue, and that she
heard what sounded like gunshots being fired. According to
Michael's written statement, he realized that he was being followed
by another car. When he stopped his vehicle at the stop sign at
the intersection, defendant came up next to him and pointed a gun
at him. As Michael drove through the intersection, he heard
gunshots.
We recognize that at trial both Rosa G. and Michael recanted
portions of their prior written statements linking defendant to the
shooting incident. However, it was for the jury to weigh their
credibility and to resolve conflicts or inconsistencies in their
testimony. See People v. Frieberg, 147 Ill. 2d 326, 360 (1992).
We find that a rational trier of fact could have found the
essential elements of the crime proved beyond a reasonable doubt.
For the foregoing reasons, we affirm the order of the circuit
court of Lake County finding defendant guilty of unlawful use of
weapons and sentencing him to 24 months' probation.
Affirmed.
RATHJE and HUTCHINSON, JJ., concur.