People v. Gonzalez

2018 IL App (1st) 152242

112 N.E.3d 676

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

v.Leonardo GONZALEZ, Defendant-Appellant.

No. 1-15-2242

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed September 28, 2018

Michael J. Pelletier, Patricia Mysza, and Karl H. Mundt, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Hareena Meghani-Wakely, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant Leonardo Gonzalez was convicted of attempted first degree murder and aggravated battery with a firearm, for a shooting on July 3, 2010. Defendant was sentenced on June 25, 2015, to concurrent sentences of 38 years and 10 years, respectively, with the Illinois Department of Corrections (IDOC).

¶ 2 On appeal, defendant raises numerous claims, including that his conviction and sentence for aggravated battery must be vacated under the one-act, one-crime rule, since the two offenses stemmed from the same shooting of the same victim. The State agrees.

¶ 3 Defendant's other claims include: (1) that the trial court improperly denied his right to present a defense by barring him from showing the tattoos on his hands to the jury where the tattoos would have further established the weakness of the State's eyewitness identifications, unless he waived his right to testify; (2) that the unreliable eyewitness identifications failed to prove beyond a reasonable doubt that defendant was, in fact, the shooter, where the police told the eyewitnesses, prior to their initial identifications that they had found the shooter and that his photo appeared in the photo spread given to them; (3) that his trial counsel was ineffective for failing to call numerous alibi witnesses; and (4) that the trial court erred in denying his motion for a new trial based on evidence of actual innocence.

¶ 4 For the following reasons, we reverse and remand for a new trial.

¶ 5 BACKGROUND

¶ 6 I. Pretrial

¶ 7 Prior to trial, the State made an oral motion in limine to exclude gang evidence. Defense counsel explained that the victim had admitted to being in a gang and had stated that he believed the shooter was also in a gang. However, counsel "agree[d] there should be no gang evidence [with] regards to" defendant. The ASA replied that the State did not intend to elicit any gang evidence. The ASA confirmed that the victim had stated to a detective that the victim was in a gang and believed that the shooter had also been in the same gang. However, the ASA clarified that the victim "indicated to [the ASA] that he does not know the defendant, and has never known the defendant prior to this incident." The trial court ruled that, if defense counsel tried to impeach the victim with his prior statement concerning gangs, then counsel will have opened the door to the State also to bring in gang evidence.

¶ 8 II. Trial

¶ 9 The following facts were established at trial. On July 3, 2010, at some time after 1 a.m., the victim left a party, and his van hit a pothole, blowing out a tire, near Harding Avenue and 28th Street in the South Lawndale neighborhood of Chicago. He called his girlfriend, who arrived in her sport utility vehicle (SUV), which the two of them sat in while they waited for a tow truck. In the rearview mirror, the victim observed a man looking inside his van. A second man approached, and the first man told the second man that there was a stereo in the van. The first man tried to open the van by reaching into the van through a window. The victim exited his girlfriend's vehicle and told the two men not to steal the stereo from his van. As the first man started backing away from the van, the victim walked toward it. The first man then lifted up his shirt with his left hand, pulled out a gun from his waistband with his right hand, cocked the gun with his left hand, and fired at the victim. When the shooting started, the victim was approximately six feet away from the shooter. After the victim was shot in his right hand three times, he ran and was shot in the leg and in the posterior. The two men ran off, and the victim's girlfriend drove the victim to the hospital.

¶ 10 At trial, the victim testified that he was 26 years old and had three felony convictions for (1) attempted residential burglary, in 2003, (2) burglary in 2004, and (3) criminal damage to government property, in 2012. On July 2, 2010, he was at a wedding party at his grandmother's house, where he consumed six beers. He stopped drinking by 1 a.m. on July 3, 2010.

¶ 11 The victim testified that, after leaving the party, his van hit a pothole near 28th Street and Harding Avenue, which was a residential neighborhood with streetlamps. It was "like three in the morning," so there were no other drivers on the road. He parked his van on 28th Street, and there was a streetlamp right by his van, at the corner. After inspecting the broken wheel, he called both a tow truck and his girlfriend. When his girlfriend arrived 10 minutes later, she parked her SUV on Harding Avenue, about three houses or 50 feet away from his van, and he entered the passenger side of her SUV. While talking to his girlfriend and waiting in her SUV for the tow truck, he also kept an eye on his van by looking in the rearview mirror.

¶ 12 The victim testified that, after five minutes, he observed a man walk to his van and peer inside by the driver's side. Then this first man walked across the street towards a second man who was exiting from the rear of a house. The two men were talking loudly, and the victim had his window rolled down, and so the victim could clearly hear the first man state "there's a stereo in that car." The van's windows were rolled down, and the first person returned to the van and stuck "pretty much half his body" inside the van, through the passenger window. The victim could hear the first man trying to open the van's door from the inside. At this point, the second man was three feet from the first man.

¶ 13 The victim testified that he exited his girlfriend's SUV and approached his van. As the victim approached, both men looked toward him. The first man stopped leaning into the van, turned toward the victim, and was standing five or six feet away. In court, the victim identified the first man as defendant, who the victim had "never" observed before. The victim testified that he told the first man: "this is my van. Don't steal it. Don't rob it. I live [nearby]." At that moment, the first man backed 8 or 10 feet away from the van, and the victim walked toward the passenger side of his van. The first man lifted up his shirt with his left hand, pulled a gun out of his waistband with his right hand, cocked it back with his left hand, and pointed it at the victim's abdomen. Before the first man fired, the victim placed his hands over his abdomen and was shot in his right hand three times. When the shooting started, the victim was six or seven feet away from the gun.

¶ 14 The victim testified that, after he was shot in his right hand, he turned and ran and was hit two more times, once in the leg and once in his posterior. The bullet in his leg exited through his lower stomach, while the second bullet, in his posterior, remained in his body. The first man fired a total of 10 to 12 times at the victim. The victim screamed that he was shot in the chest, in the hope that the firing would stop. After the victim observed the two men run away, the victim ran toward and entered his girlfriend's SUV, and she drove him to the hospital.

¶ 15 The victim testified that, when he first arrived at the hospital, he received morphine. During the 24 hours that the victim was at the hospital, he was visited twice by the Chicago police. During the first visit, the victim estimated that his pain level was a 10, on a scale of 1 to 10, and he had to stop the conversation with the police.

¶ 16 The victim testified that, on August 5, 2010, he met with Detective Jose Gomez who showed him a photo spread. The victim identified the bottom left photo as a photo of the shooter and initialed and dated it. In court, the victim identified both "a lineup photo-spread advisory form" that he had signed¹ and the six-photo spread itself. On the next day, August 6, 2010, the victim was informed that the shooter had been arrested, and he and his girlfriend went to a police station to view a lineup. During the lineup, he identified the shooter as the second person from the left, who was wearing a jersey stating "Detroit." In court, the victim identified a set of photos as photos of the lineup and identified defendant as the person whom he had identified in the lineup.²

¶ 17 At the end of the direct examination, when asked if he was sure that defendant was the shooter, the victim replied:

"VICTIM: I'm 100 percent sure. I was only a couple feet away. I had a good glimpse of his tattoos and his face to—

ASA: Rest at this time, Judge, with regards to this witness."

¶ 18 On cross-examination, the victim testified that, when the shooter cocked the gun with his left hand, the victim noticed that the shooter had tattoos on his arms. When asked whether the shooter had tattoos on his hands, the victim responded that he "was just focused on the ones on the arms." When defense counsel asked if the victim was focused on the left hand that had lifted the shirt and cocked the gun, he replied "yes." When counsel asked if the victim noticed any tattoos on the shooter's left hand, the victim then stated that he "was more focused on [the shooter's] face and his reactions to see if he would say anything." Counsel then asked, when the victim was focused on the shooter's face, whether he noticed an overbite. The victim testified that he did not notice an overbite because he was "concentrated on the face part." When counsel asked again whether the victim noticed any...