People v. Zurita

No. 2--97--0320

__________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
___________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--CF--3103
)
ISAAC ZURITA, ) Honorable
) Victoria A. Rossetti,
Defendant-Appellant. ) Judge, Presiding.
___________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Following a jury trial, the defendant, Isaac Zurita, was found
guilty of attempted murder (720 ILCS 5/8--4(a) (West 1994)), armed
violence (720 ILCS 5/33A--2 (West 1994)), aggravated battery with
a firearm (720 ILCS 5/12--4.2(a)(1) (West 1994)), and aggravated
discharge of a firearm (720 ILCS 5/24--1.2(a)(1) (West 1994)) and
sentenced to 16 years imprisonment. On appeal, the defendant
argues that (1) the trial court erred in refusing to admit the prior
inconsistent statements of several witnesses as substantive
evidence; and (2) the trial court erred in finding that he was not
eligible for a good time credit in serving his sentence. We
reverse and remand for a new trial.
On December 27, 1995, the defendant and Rogelio Montoya were
indicted on charges of attempted murder, armed violence, and
aggravated battery. An additional charge of aggravated discharge
of a firearm was later brought against the defendant and Montoya by
information. All of these charges arose out of a shooting incident
that took place on December 13, 1995.
On this date, two separate groups of young men were shopping
in the Gurnee Mills Shopping Center in Gurnee. One group consisted
of Rogelio Montoya, Miguel Arizmendi, Jose Cordova, and the
defendant (the Montoya group). The other group consisted of Daniel
Mandujano, Jonathon Sharp, Ryan Doyle, and the victim, Jeremy
Urbanik (the Urbanik group). Some of the individuals in the Montoya
group had allegiances to the Latin Kings gang, while some of the
individuals in the Urbanik group had allegiances to the rival
Orchestra Albanies gang. When the two groups encountered each
other inside the mall, an argument ensued and the two groups decided
to take the matter outside. Once the two groups arrived outside,
several gunshots were fired, and the victim was struck in the neck
by a .25-caliber bullet.
At the scene of the shooting, Gurnee police officers found
spent shell casings in the area of the parking lot where the Montoya
group had been standing. One of the casings was from a 9-
millimeter cartridge, and two other casings were from .25-caliber
cartridges. The police also found holes in a wall and a window of
the mall.
The defendant was arrested on December 15, 1995. The police
found a round of .25-caliber cartridges in the car that he was
driving at the time of his arrest. After waiving his Miranda
rights, the defendant gave the police a written statement regarding
the incident. The defendant told the police that, while he and his
friends were eating inside the mall, one of the individuals in the
Urbanik group gave Montoya dirty looks. The two groups proceeded
out of the mall, at which time one of the men in the Urbanik group
stated, I will do you right now, let s go. At this point, the man
lifted up his sweater and pulled out a gun.
After the man in the sweater pulled out a gun, Montoya
immediately fired several shots at the Urbanik group. The defendant
turned and began to run away, firing two shots from a .25-caliber
gun over his shoulder as he fled from the Urbanik group. The
defendant explained that he fired these shots because he feared that
he would be shot. The defendant then got into his vehicle with
Miguel Arizmendi and left the scene. The defendant told the police
that he later went to the Waukegan lakefront and threw his gun into
Lake Michigan.
Gurnee police officers interviewed all four of the men who were
part of the Urbanik group. Each of these individuals, including the
victim, told the police that Montoya had incited the gang dispute
and had fired a weapon. Each of these witnesses identified Montoya
from an array of photographs. After taking these witnesses
statements, the police arrested Montoya.
At trial, the State called each of the men in the Urbanik
group. Two of these witnesses, Jonathon Sharp and the victim,
testified that there was absolutely no doubt that Montoya fired the
shot that struck the victim. Moreover, all four witnesses testified
that the only person whom they actually saw shoot a gun was Montoya.
Three of the witnesses, Mandujano, Doyle, and the victim, testified
that, notwithstanding their prior police statements, they now
believed that the defendant had been one of the instigators of the
incident and that they had seen him standing next to Montoya in a
posture suggesting that he had a gun.
Daniel Mandujano testified that he was one of the members of
the Urbanik group on the date in question. He testified that the
defendant was one of the members of the Montoya group and that he
was flashing gang signs and uttering gang slogans. Once the groups
went outside the mall, he saw Montoya pull out a gun and fire from
about 100 feet away. Mandujano thought that he heard three or four
shots but did not remember exactly how many shots were fired.
Mandujano did believe that the first shot he heard was deeper than
the others. Although he saw the defendant standing next to Montoya
when Montoya fired his gun, he never saw the defendant with a gun
or saw the defendant take any action that looked as though he was
shooting. On cross-examination, Mandujano admitted that, in his
signed police statement, he had stated that Montoya was the person
responsible for shooting and provoking the incident.
Ryan Doyle testified that he was also one of the members of the
Urbanik group on the date in question. He testified that all four
people in the Montoya group, including the defendant, were making
gang references prior to the shooting. When the groups got outside
the mall, he saw both Montoya and the defendant raise their arms in
the air, as if they had weapons. Doyle testified that he heard
shots fired but was unsure as to the number of shots. He testified
that the defendant was not running at the time the shots were fired.
On cross-examination, Doyle was confronted with the signed
statement he had given the police. Although Doyle had testified on
direct examination that he saw two men with weapons and that the
defendant might have fired a gun, he only told the police that
Montoya had pulled out a gun and fired at the victim. Doyle also
acknowledged that he had told police that Montoya was the individual
making the gang signs and references. Additionally, contrary to his
trial testimony in which he was unsure how many shots were fired,
the defendant told the police that he had heard four or five shots
at first and then heard two shots a bit later.
The victim testified that, once the two groups arrived outside,
he heard both Montoya and the defendant yelling gang slogans. The
victim stated that he then saw Montoya pull something from his
waistband and shoot him. He had no doubt that he was shot by a
bullet fired by Montoya. Although he believed that the defendant
had something in his hand, he could not identify the object as a gun
and never saw the defendant fire a shot. The victim was taken to
a hospital, and a single bullet was removed from his neck under
local anesthesia.
On cross-examination, the victim was confronted with the
statements he had given to the police after the incident. The
victim acknowledged that he had made these statements. In these
statements, the victim told police that Montoya was the individual
who had confronted him and his friends. Unlike his testimony at
trial, the victim did not tell the police that the defendant was
yelling gang epithets or that he saw an object in the defendant s
hand.
During his case in chief, the defendant sought to introduce as
substantive evidence the police statements of Doyle, Mandujano, and
the victim. The defendant argued that these statements were
admissible pursuant to section 115--10.1 of the Code of Criminal
Procedure of 1963 (the Code) (725 ILCS 5/115--10.1 (West 1994)) as
prior inconsistent statements. The defendant argued that these
prior statements were inconsistent with the witnesses trial
testimony regarding the defendant s involvement in the shooting.
The defendant also requested the trial court to tender Illinois
Pattern Jury Instruction No. 3.11, which discusses the substantive
use of prior inconsistent statements (Illinois Pattern Jury
Instructions, Criminal, No. 3.11 (3d ed. 1992)(hereinafter IPI
Criminal 3d)).
The trial court denied the defendant s request to admit the
witnesses police statements into evidence and also refused to
tender IPI Criminal 3d No. 3.11 to the jury. The trial court held
that, because the various witnesses did not deny making their prior
statements to the police, they could not be considered
inconsistent for purposes of section 115--10.1. Although the
trial court did not permit the introduction of the statements as
substantive evidence, it did permit the jury to consider the
statements for purposes of impeachment.
Following deliberations, the jury found the defendant guilty
of attempted murder, armed violence, aggravated battery with a
firearm, and aggravated discharge of a firearm. Following a
sentencing hearing, the trial court sentenced the defendant to 16
years imprisonment. The trial court also made an express finding
that the defendant had caused great bodily harm and would
therefore not be entitled to any good time credit towards his
sentence. Following the denial of his postsentencing motion, the
defendant filed a timely notice of appeal.
The defendant s first contention on appeal is that the trial
court erred in refusing to admit as substantive evidence the police
statements of Doyle, Mandujano, and the victim. The defendant
argues that these statements were inconsistent with their trial
testimony in several important respects and were therefore
admissible pursuant to section 115--10.1 of the Code (725 ILCS
5/115--10.1 (West 1994)). The defendant concludes that the trial
court s failure to admit this evidence was highly prejudicial, and
he requests that we reverse his conviction and remand the cause for
a new trial.
Section 115--10.1 of the Code provides for the substantive
admissibility of prior inconsistent statements in criminal cases.
People v. Posedel, 214 Ill. App. 3d 170, 176 (1991). Under section
115--10.1, such statements are admissible when (1) the prior
statement is inconsistent with the witness s trial testimony; (2)
the witness is subject to cross-examination regarding the prior
statement; (3) the prior statement is within the witness s personal
knowledge; and (4) the prior statement is acknowledged by the
witness at trial. 725 ILCS 5/115--10.1 (West 1994); People v.
Hastings, 161 Ill. App. 3d 714, 719 (1987). As noted above, the
trial court found that the witnesses trial testimony was not
inconsistent with their prior statements to the police.
The prior statement of a witness does not have to directly
contradict the testimony given at trial to be considered
inconsistent within the meaning of section 115--10.1. People v.
Flores, 128 Ill. 2d 66, 87 (1989). Rather, a prior statement is
inconsistent with a witness s trial testimony when it has a tendency
to contradict the trial testimony. People v. Lee, 243 Ill. App. 3d
745, 749 (1993). Inconsistencies may be found in evasive answers,
silence, or changes in position. Flores, 128 Ill. 2d at 87. The
determination of whether a witness s prior testimony is inconsistent
with his present testimony is left to the sound discretion of the
trial court. Flores, 128 Ill. 2d at 87-88.
Where a witness claims to be unable to recollect a matter at
trial, a former affirmation of the matter should be admitted as a
contradiction. Flores, 128 Ill. 2d at 87; People v. Morales, 281
Ill. App. 3d 695, 701-02 (1996). Additionally, a prior statement
is deemed inconsistent when it omits a significant matter that would
reasonably be expected to be mentioned if true. People v. Conley,
187 Ill. App. 3d 234, 244 (1989). The inconsistency may consist of
the failure to speak of a matter entirely when it is shown that the
witness had an opportunity to make a statement and that a person
would reasonably be expected under the circumstances to do so.
Conley, 187 Ill. App. 3d at 244; M. Graham, Cleary & Graham s
Handbook of Illinois Evidence,  613.2, at 509 (6th ed. 1994).
Applying these principles to the instant case, we agree with
the defendant that there were critical inconsistencies between the
trial testimony of Doyle, Mandujano, and the victim, and their prior
police statements. At trial, Doyle testified that he observed the
defendant draw a gun and lift his arm in a shooting motion while
standing next to Montoya. During his police statement, however,
Doyle did not mention the defendant as the shooter and instead
identified Montoya as the individual who fired a gun. Similarly,
Doyle testified at trial that the defendant was flashing gang signs
and using gang epithets; in his police statement, Doyle attributed
all this conduct to Montoya.
Contrary to the State s assertions, we do not believe that
Doyle s trial testimony was merely a clarification of his
statements to the police. Doyle s police statement completely
lacked any reference to the defendant as a participant in the crime.
Such a statement is in stark contrast to Doyle s detailed trial
testimony regarding the defendant s conduct. Doyle s sudden memory
of the defendant s participation in the incident at trial certainly
appears to be a change of position tending to contradict his trial
testimony. See People v. Jefferson, 260 Ill. App. 3d 895, 910
(1994). If the defendant had in fact participated in the offense
as Doyle testified at trial, it would be reasonable to expect that
Doyle would have mentioned this in his statement to the police. See
Conley, 187 Ill. App. 3d at 244. We believe that his failure to do
so presented an inconsistency for purposes of section 115--10.1.
Flores, 128 Ill. 2d at 87; Jefferson, 260 Ill. App. 3d at 910.
We additionally note that there was an even more striking
inconsistency between Doyle s trial testimony and his prior police
statement regarding the number of shots that were fired. At trial,
Doyle testified that he could not remember how many shots were
fired. However, in his police statement, Doyle specifically stated
that he had heard four or five shots, then a brief pause, followed
by an additional two shots. As noted above, where a witness claims
to be unable to remember a certain detail, a prior statement
describing the detail should be admitted as a contradiction.
Flores, 128 Ill. 2d at 87; Lee, 243 Ill. App. 3d at 749. We
therefore conclude that Doyle s prior police statement regarding the
number of shots fired was inconsistent with his testimony at trial
for purposes of section 115--10.1. The admission of this prior
statement was particularly relevant in light of the fact that it
tended to corroborate the defendant s testimony that he fired two
shots only after Montoya had first fired several shots.
As detailed above, the trial testimony of Mandujano and the
victim was also inconsistent with their statements to the police in
several important respects. At trial, both men testified that the
defendant had flashed gang signs and yelled gang slogans prior to
the incident. However, in their statements to the police, they
attributed this conduct to Montoya and did not mention the
defendant. Additionally, the victim testified at trial that the
defendant had lifted up his arm and appeared to have something in
his hand; however, in the victim s police statement, he stated that
he did not see what happened at the time of the shooting. For the
reasons elaborated above, we are compelled to conclude that such
discrepancies are also inconsistent for purposes of the statute.
See Jefferson, 260 Ill. App. 3d at 910.
Having determined that the prior police statements of Doyle,
Mandujano, and the victim were inconsistent with their trial
testimony, we briefly turn to the remaining three statutory
requirements for substantive admissibility. First, all three
witnesses were present at trial and therefore subject to cross-
examination concerning their prior statements. 725 ILCS 5/115--
10.1(b) (West 1994). Second, these prior statements were clearly
within the witnesses personal knowledge, as they were present at
the scene at the time of the shooting. 725 ILCS 5/115--10.1(c)(2)
(West 1994). Finally, at trial each of the witnesses acknowledged
making these prior statements. 725 ILCS 5/115--10.1(c)(2)(B) (West
1994). As each of the statutory requirements of section 115--10.1
has been satisfied, we conclude that the trial court abused its
discretion in refusing to admit the prior statements as substantive
evidence.
Moreover, we conclude that the failure to admit the prior
inconsistent statements cannot be dismissed as harmless error. The
defendant testified at trial that he had no role in any of the
events until after he saw one of the members of the Urbanik group
display a gun. The defendant asserted that he fired two shots over
his shoulder in self-defense as he was running away from the area.
The excluded witnesses statements to the police tend to corroborate
the defendant s claim of self-defense. These statements contain no
mention of the defendant flashing gang signs or taking any role in
the shooting. In view of the State s reliance on the trial
testimony of these witnesses to discredit the defendant s theory of
self-defense, it was especially crucial that the jury be allowed to
consider the prior inconsistent statements as substantive evidence.
See People v. Wilson, 149 Ill. App. 3d 1075, 1079 (1986),
The State argues that the defendant was not prejudiced by the
exclusion of these statements because there was a factual basis to
support the jury s verdict on the alternate theory of
accountability. We disagree. The jury in the instant case was
instructed that the defendant could be held responsible for the
conduct of another if he knowingly solicited, aided, abetted, agreed
to aid, or attempted to aid another person in the commission of the
offense. IPI Criminal 3d No. 5.03. For the reasons already
discussed, we believe that the excluded evidence was important for
the jury to consider in making the determination as to the degree
of the defendant s participation in the offense and whether he could
be held accountable for Montoya s conduct. As noted by the
defendant, a person s mere presence or acquiescence is not
sufficient to render that person accountable for the acts of
another. People v. Evans, 87 Ill. 2d 77, 83 (1981).
The State also argues that the defendant was not prejudiced by
the trial court s ruling because the jury was permitted to consider
the prior statements for impeachment purposes. In certain contexts,
the admission of prior inconsistent statements for impeachment
purposes has been found to minimize any prejudice caused by the
failure to admit the evidence substantively. See People v.
Whitelow, 215 Ill. App. 3d 1, 6-7 (1991). However, we note that in
most of these cases the prior statements were found to be
duplicative of the other evidence before the jury, or the statement
concerned a trivial matter. Whitelow, 215 Ill. App. 3d at 6-7;
Jefferson, 260 Ill. App. 3d at 910-11.
In the instant case, we agree with the defendant that the prior
inconsistent statements were crucial to his defense theory. We
decline to speculate as to the weight the jury gave the statements
during deliberations and instead determine that the defendant was
entitled to have the statements admitted substantively as permitted
under the statute. See People v. Wilson, 149 Ill. App. 3d 1075,
1078-79 (1986). The clear benefit of being able to use such
statements as substantive evidence is that it places such testimony
on an equal footing with the other evidence admitted at trial,
making it more persuasive in the eyes of the jury. Wilson, 149 Ill.
App. 3d at 1078-79. Additionally, as substantive evidence, the
defendant can then use the statements more extensively during
closing argument in an attempt to convince the jury of his defense
theory. Wilson, 149 Ill. App. 3d at 1078-79. The loss of this
advantage was critical to the defendant s defense and resulted in
substantial prejudice. We therefore conclude that the defendant is
entitled to a new trial in which the prior statements are admitted
substantively.
As our resolution of this issue controls our disposition on
appeal, we need not consider the defendant s sentencing argument.
For the foregoing reasons, the judgment of the circuit court
of Lake County is reversed, and the cause is remanded for a new
trial.
Reversed and remanded.
McLAREN and RATHJE, JJ., concur.