People v. Djurdjulov

2017 IL App (1st) 142258

86 N.E.3d 1139

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jovan DJURDJULOV, Defendant-Appellant.

No. 1-14-2258

Appellate Court of Illinois, First District, SECOND DIVISION.

September 12, 2017

Michael J. Pelletier, Patricia Mysza, and Darren E. Miller, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 A jury found Jovan Djurdjulov guilty on two counts of first degree murder. Djurdjulov argues on appeal that the trial court should have suppressed the statements he made to police, and the court should have granted Djurdjulov's request for fees so that he could hire an expert to analyze cell phone records the prosecution used at trial. We find Djurdjulov's statements admissible, but we hold that the court should have granted Djurdjulov's request for expert witness fees. Accordingly, we vacate the convictions and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 The Spanish Cobras gang and the Spanish Gangster Disciples (SGD) gang fought for control of areas in Chicago early in 2009. On January 30, 2009, a thrown glass bottle shattered a window in the home of Djurdjulov, a member of the Cobras. Around 1 a.m. on January 31, 2009, a fire started raging through a three-story apartment building on Argyle Street, near Pulaski Road. Members of the SGD lived on the second and third floors of the burned building. Rosanna Ocampo and her daughter, Itzel Fernandez, who lived on the second floor of the building, died from inhaling smoke from the fire. Firemen at the scene smelled gasoline in the building. Police recovered debris from the scene and sent it to a lab to test for accelerants.

¶ 4 Police sought to question some members of the Cobras about their whereabouts at the time the fire started. After 6 p.m. on January 31, 2009, a security guard at Roosevelt High School contacted police when he saw Djurdjulov and two other Cobras enter the high school to watch a show in the auditorium. Police officers came into the auditorium and escorted Djurdjulov, Ulices Gomez, and Jamale Hernandez to three waiting police cars that took the three Cobras to the police station for questioning. Djurdjulov told police that he had visited Michael and Noel Santiago shortly after midnight that morning, and he had heard that Franco Avila, another Cobra, set the fire. Police released Djurdjulov, Gomez, and Hernandez.

¶ 5 Police again picked up Djurdjulov on February 15, 2009. To check his alibi, they asked him to show them where he was at the time of the fire. He directed police to the area and pointed out the Santiagos' home.

¶ 6 Police arrested Djurdjulov on March 10, 2009, in connection with an incident unrelated to the fire. Djurdjulov remained in an interrogation room at the station for about 36 hours, where police questioned him about the fire. Police recorded the questioning. Djurdjulov eventually said that David Vasquez, a former member of the SGD, started the fire, and Vasquez asked Djurdjulov to act as a lookout. Prosecutors charged Djurdjulov with two counts of first degree murder.

¶ 7 Pretrial Proceedings

¶ 8 Djurdjulov moved to suppress the statements he made to police on January 31, February 15, and March 10 to 12, 2009. The trial court heard testimony from police officers and other persons who saw police with Djurdjulov in the high school. The court concluded that Djurdjulov voluntarily went with police to the police station and voluntarily answered questions about his whereabouts at the time the fire started. The court also found that Djurdjulov voluntarily accompanied police on February 15, 2009. The court watched the recording of Djurdjulov's time in custody from March 10 to March 12, 2009. The court found Djurdjulov's statements voluntary. The court denied the motion to suppress the statements.

¶ 9 Djurdjulov expected police to use cell phone records as evidence at the murder trial. Defense counsel filed a motion asking the court for funds so that Djurdjulov could pay an expert to analyze the cell phone records and help with cross-examination of the prosecution's cell phone expert. At the hearing on the motion, Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert. Djurdjulov testified that his aunt paid the fees of his privately-retained attorney. The State offered no evidence to challenge the credibility of Djurdjulov's assertions about his assets.

¶ 10 The trial court noted that it had no basis for rejecting defense counsel's assertion that he needed an expert to contest the cell phone evidence. The trial court said:

"[Djurdjulov has] been represented by privately-retained attorneys for the last four years. He in fact may be indigent, but someone's been paying the bills for his representation.

It would seem to me if the issue is the expert fees for the defense of the case, in light of the fact that persons *** have been providing funds to represent him in the case so far, that the issue is is that person able to pay for the expert fees."

¶ 11 The court denied the request for fees.

¶ 12 Trial

¶ 13 The prosecution presented an expert who testified that gasoline permeated the debris police found at the fire. The prosecution admitted that police found no useful fingerprints at the scene. No witness claimed to have seen who set the fire, and no witness claimed to have seen Djurdjulov near the apartment building near the time the fire started.

¶ 14 Michael Santiago testified that in 2009, he lived near Cicero Avenue and Lawrence Avenue in an apartment he shared with his brother Noel, Angelita LaSalle, who was Michael's fiancee, and Vivian Quesada, Noel's girlfriend. Noel and Michael belonged to the Cobras. Michael said that on January 31, 2009, Noel came home from work around 1:30 a.m., and told Michael, LaSalle, and Quesada that Djurdjulov was coming to visit. Djurdjulov arrived a few minutes later, stinking of gasoline. Djurdjulov went back out and returned, carrying jeans, and accompanied by Gomez. Djurdjulov went to a bathroom where he changed his clothes. After 2 a.m., Djurdjulov, Michael, Noel, and Gomez went to buy alcohol. Noel alone went into the liquor store. While Michael, Djurdjulov, and Gomez waited in Gomez's car, Michael complained that the car smelled like gasoline. Djurdjulov said, "I burned down a building." After they returned to Michael's home, they saw on television a news report about the fire on Argyle, about a mile from Michael's home. Djurdjulov said, "That's what I did." Later that morning, Michael found Djurdjulov's gasoline-soaked pants in Michael's bathroom. Michael put the pants in the garbage.

¶ 15 Michael admitted that when he first spoke with police about the fire, he lied, telling them he did not know Djurdjulov. The second time he spoke with police, he did not tell them Djurdjulov smelled of gasoline or that he confessed to the crime or any other incriminating facts. Michael testified that police arrested him on March 17, 2009, and told him someone had identified him as a shooter in an incident unrelated to the fire. Police questioned Michael about the fire and not about the shooting. He told them that Djurdjulov said he set the fire. Prosecutors never charged Michael in connection with the shooting incident.

¶ 16 The parties stipulated that Michael told an investigator working for defense counsel that Djurdjulov had not smelled like gasoline on January 31, 2009. The parties stipulated that Michael also said to the investigator that during the questioning in March 2009, police told Michael that they would release him from custody if he said what police wanted to hear about Djurdjulov. Michael testified that he lied to the defense investigator.

¶ 17 LaSalle testified that on January 31, 2009, Noel came home around 1 a.m. Djurdjulov came to visit around 2 a.m., smelling of gasoline. LaSalle corroborated Michael's testimony about Djurdjulov leaving and returning with Gomez and a change of clothes. She also corroborated the testimony that Djurdjulov, Gomez, Michael, and Noel went out to buy alcohol and later that morning Michael discarded clothes Djurdjulov left in the bathroom.

¶ 18 LaSalle admitted that when she first spoke to police about the night of January 31, 2009, she said Djurdjulov arrived before midnight on January 30, 2009, and stayed most of the night. She changed her account completely after police arrested Michael. Like Michael, LaSalle told the defense investigator that police said they would release Michael if she and Michael agreed to the police's account of the morning of January 31, 2009. Also like Michael, LaSalle testified that she lied to the defense investigator.

¶ 19 Quesada testified that on January 31, 2009, Noel came home around 1 a.m. and, about 10 minutes later, Djurdjulov arrived. Otherwise, she echoed LaSalle's testimony, including initially lying to police and changing her story after police arrested Michael on the shooting charge. Over defense counsel's objections to prior consistent statements, the court permitted Michael, LaSalle, and Quesada to recount both what they said to police after Michael's arrest and to say that their testimony to the grand jury the day after Michael's arrest matched the testimony they gave in court about Djurdjulov's appearance and confession on January 31, 2009.

¶ 20 The parties stipulated to the accuracy of cell phone records. The police officer who obtained the records testified: "cell providers *** explain[ed] some of the items that were on there I didn't understand. Actually, they're quite confusing sometimes."

¶ 21 Joseph Raschke of the Federal Bureau of Investigation testified that the numbers in the record identified the cell phone that made...