People v. Elizondo

2021 IL App (1st) 161699

191 N.E.3d 677

455 Ill.Dec. 370

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

v.Alvaro ELIZONDO, Defendant-Appellant.

No. 1-16-1699

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 17, 2021

Rehearing denied December 14, 2021

James E. Chadd, Catherine K. Hart, and Gilbert C. Lenz, of State Appellate Defender's Office, of Springfield, 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.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Alvaro Elizondo, was convicted of second degree murder and sentenced as a Class X offender to a 24-year prison term. On appeal, defendant contends that (1) his conviction should be reduced to involuntary manslaughter because the State failed to prove beyond a reasonable doubt that he was practically certain that his conduct would cause death or great bodily harm; (2) the State denied him a fair trial when it committed prosecutorial misconduct during its closing arguments; (3) trial counsel was ineffective for failing to request Illinois Pattern Jury Instructions, Criminal, No. 5.01B(2) (4th ed. 2000) (hereinafter, IPI Criminal 4th), which defines knowledge, when defendant's mental state was the crucial question before the jury and the instruction would have informed the jury about the difference between reckless and knowing; (4) his case should be remanded for a new trial because the trial court's failure to preserve the sealed Department of Children and Family Services (DCFS) records that were reviewed and impounded by the trial judge prior to trial denied defendant his fundamental right to appeal the court's decision not to release those records to the parties in discovery; and (5) the trial court erred by sentencing defendant to 24 years’ imprisonment after placing great weight on two improper factors in aggravation or, alternately, where defendant was 45 years old and had not committed an offense in more than 20 years, his sentence was excessive. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The circumstances surrounding defendant's conviction stem from the beating of Juan Guillermo Zavala, a/k/a "Memo" (decedent) on July 4, 2013, at 4401 South Wolcott Avenue (the Wolcott building) in Chicago. Decedent ultimately died from his injuries that were sustained from the beating, and defendant was charged with first degree murder. Defendant was also charged with aggravated battery of his mother, Gusemina Perez.¹ Prior to trial, the trial court granted the State's motion in limine to bar, among other things, any reference to defendant's sister, Laura Elizondo's arrest history, arrest booking photos, or any testimony regarding her loss of custody of her children as unrelated to this case and irrelevant to the matter before the court. Additionally, the trial court issued a written order on February 16, 2016, indicating that it found that none of the subpoenaed DCFS records regarding Laura and her daughter, V.O., contained material that was arguably discoverable and denied defendant's request to have such records released for discovery.² The trial court then ordered that the DCFS records be impounded with the clerk of the circuit court of Cook County for purposes of appellate review only. Defendant's trial commenced on March 8, 2016, where the following evidence was presented.

¶ 4 A. Trial Proceedings

¶ 5 Martin Rodriguez testified that he lived at the Wolcott building on July 4, 2013, and that defendant and his family were his neighbors on the second floor. Defendant's family consisted of his mother (Perez), his sister (Laura), and his niece (V.O.). Martin stated that decedent also lived in the apartment with defendant and his family. Martin identified defendant in court and testified that he called defendant "Alvaro," "Al," and "Lasso." Martin stated that when he arrived home at approximately 9:30 p.m., there was a barbecue taking place and Perez, Laura, decedent, V.O., and other people were present. Martin got a plate and walked over to his friends. He saw decedent have a few beers but did not see either Laura or decedent with a pipe or smoking anything.

¶ 6 At approximately 9:45 p.m., defendant arrived and subsequently had an argument with Laura. Decedent, who was Laura's boyfriend, was approximately 5 to 10 feet away. Decedent then walked over to where defendant and Laura were arguing, and defendant punched him in his right jaw. Martin stated that he was approximately 10 feet away and did not see decedent do anything to defendant before defendant hit him. After defendant punched decedent, decedent fell to the concrete, hit his head, and did not move. Martin walked towards decedent, waiting for someone to bring something to wake him up, but he did not wake up. He told everyone to call the police, but since no one had a phone, he went inside and made two calls to 911: one in English and one in Spanish. When he returned outside, Perez was lying on the grass and decedent's face was bleeding. Laura went upstairs and returned with a bucket with some liquid in it, which she threw at defendant, and they both start running; defendant ran south towards 45th Street. Some of the other guests helped Perez up from the ground, and Martin flagged down the police and ambulance once they arrived. Martin testified that defendant returned to the building approximately 45 minutes to an hour later, and when the police subsequently came to his house, he pointed defendant out to them. Martin also stated that he never heard defendant threaten his mother that night.

¶ 7 On cross examination, Martin testified that decedent and defendant did not really get along and they had a few physical fights but would also sometimes drink or work together. After those fights, decedent was always okay later. Martin reiterated that on July 4, 2013, both decedent and Laura had been drinking at the nearby block party. He also testified that during the 15 to 20 years that he knew Laura, he had seen her use crack cocaine on prior occasions, and he had seen decedent drink alcohol. Martin also stated that defendant started yelling after he was put in the police car.

¶ 8 On redirect examination, Martin clarified that he never personally saw defendant and decedent fight previously but heard about the fights from others. On the date of this fight, defendant appeared to be drunk. Martin heard defendant yell "I want to kill you" from the police car.

¶ 9 Dr. James Filkins, a former assistant medical examiner for the Cook County Medical Examiner's Office testified that he performed an autopsy on decedent on July 21, 2013. Decedent had been hospitalized for approximately 2½ weeks when he died. Filkins indicated that decedent was 46 years old, weighed 227 pounds, and was 5 feet, 8 inches, tall. He noted the following external injuries to decedent: a large bruise on the back of the shoulders that measured 12 inches by 8 inches in dimension and an abrasion on the underside of his left cheek that measured 0.9 inches by 0.8 inches. Filkins also noted the following internal injuries to decedent's head and brain, namely specific patterns of hemorrhage in different locations: "subgaleal hemorrhages" or bleeding to the space above his left ear measuring 3 by 2 inches and to the space over his right ear measuring 4 inches by 1.8 inches. Filkins further stated that as part of the autopsy he examined decedent's medical records to look for any injuries reported by a radiologist that he would be unable to determine just by looking. In doing so, Filkins noted that decedent's medical records indicated a nasal fracture and a fracture to the occipital bone of the skull. He also noted that decedent had cirrhosis of the liver. Filkins opined that decedent died from complications of blunt head trauma, which were consistent with being punched in the face, falling back and hitting the head on concrete, and having one's head slammed on the concrete. He further opined that decedent's manner of death was homicide.

¶ 10 On cross examination, Filkins clarified that there was also bleeding within the substance of decedent's brain on the right front and side as well as in the undersurface of the brain. He further indicated that decedent's cirrhosis of the liver complicated his injuries because it affected the ability of his blood to clot properly.

¶ 11 On redirect examination, Filkins stated that if decedent had not experienced blunt head trauma on July 4, 2013, his life expectancy would have been greater than 2½ weeks.

¶ 12 Laura testified that on July 4, 2013, she lived at the Wolcott building, which was a six-unit building, in the first-floor rear unit. She testified that she lived there with her mother, decedent, her daughter, her grandson, and defendant. She and decedent dated for nine years. Laura identified defendant in court as her brother. She stated that her mother lived in that apartment for approximately 25 years and Laura had only returned there a few months prior to July 2013. On July 4, 2013, she had a cookout for her family on the 44th Street side of the building, with a grill set up on the parkway near a tree. Laura had also set up an inflatable swimming pool for her grandchildren. Some of her neighbors attended, along with her mother, 13-year-old V.O. (her daughter), her granddaughter, and decedent. Defendant stopped by the cookout at approximately 2 p.m., had a couple of beers, and left.

¶ 13 When it got dark, decedent lit fireworks in the alley and Laura heard defendant coming around the corner, "hollering and screaming." He was walking on Wolcott Avenue, coming from the direction of 43rd Street and was yelling "call the police." Defendant then sat down in an empty chair and kicked the swimming pool, so Laura took the pool, emptied the water onto the street, and began to deflate it. She and defendant began...