People v. Luciano

2023 IL App (2d) 220112

220 N.E.3d 517

468 Ill.Dec. 209

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

v.Michael A. LUCIANO, Defendant-Appellee.

No. 2-22-0112

Appellate Court of Illinois, Second District.

Filed June 9, 2023

Jamie L. Mosser, State's Attorney, of St. Charles (Janet C. Mahoney, Assistant State's Attorney, and Patrick Delfino, Edward R. Psenicka, and Katrina M. Kuhn, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

James E. Chadd, Douglas R. Hoff, and Jonathan Yeasting, of State Appellate Defender's Office, of Chicago, for appellee.

OPINION

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

¶ 1 On Halloween 1990, Albert Gonzalez, leader of the Insane Deuces street gang in Aurora, was murdered by members of the Latin Kings street gang in Aurora. Police quickly developed information pointing to defendant, Michael A. Luciano, and other members of the Latin Kings. The State was presented with a choice: develop further information and charge defendant with murder or charge defendant as quickly as possible with what it could from the evidence on hand. The State chose the latter course and charged defendant in two cases: in 1990, in case No. 90-CF-1887, defendant was charged with six counts of unlawful possession of weapons by a felon ( Ill. Rev. Stat. 1991, ch. 38, ¶ 24-1.1(a) (now 720 ILCS 5/24-1.1(a) (West 2020))), and in 1991, in case No. 91-CF-787, defendant was charged with four counts of unlawful possession of weapons by a felon and one count of solicitation to commit aggravated discharge of a firearm ( Ill. Rev. Stat. 1991, ch. 38, ¶ 8-1(a) (now 720 ILCS 5/8-1(a) (West 2020))).

¶ 2 In this case, the third appeal before this court,¹ the State's choice to prosecute defendant as quickly as possible is at issue. The State appeals the order of the circuit court of Kane County granting relief to defendant following a third-stage postconviction hearing. We affirm as modified the trial court's judgment, and we reverse and vacate defendant's conviction.

¶ 3 I. BACKGROUND

¶ 4 We summarize the facts necessary for an understanding of the issues raised in this appeal.

¶ 5 A. Investigation of the Offense in 1990 and 1991

¶ 6 On October 31, 1990, Michael Langston, a detective with the Aurora Police Department, arrived at the Gonzalez residence, where Gonzalez was shot, about an hour after the shooting had occurred. He determined that the shots were fired from a grassy area about 60 yards from the residence. Langston's search of the area recovered six .22-caliber shell casings, one live .22-caliber round, two shotgun shell casings, one .30-caliber shell casing, and one .30-30-caliber shell casing. A further search of the area by an evidence technician recovered three .30-30 Winchester shell casings and parts of expended shotgun shells.

¶ 7 On November 4, 1990, the police executed a search warrant at a residence associated with defendant, located on East Galena Boulevard in Aurora. Police recovered firearms and ammunition, as well as documents and photographs related to the Latin Kings.

¶ 8 On November 7, 1990, a confidential source, later revealed as Hector Rodriguez, informed Robert Reichardt, an officer with the Aurora Police Department, about details of a Latin Kings meeting that occurred near Halloween 1990. Reichardt was told that defendant distributed firearms to Latin King members Robert "Droopy" Rangel, Jose "Bam Bam" or "Joe" Delatorre, and Jose "Speedy" Rivera. Rodriguez also informed Reichardt that, on November 3, 1990, after the Gonzalez murder, the weapons were returned to defendant and on November 4, 1990, the weapons were again moved. From Rodriguez's information, the State obtained search warrants and conducted searches of the residences that Rodriguez had linked to defendant and the Gonzalez murder.

¶ 9 On November 7, 1990, Reichardt executed a search warrant at an apartment associated with defendant on Best Place in Aurora (Best Place apartment), which was the residence of his father's girlfriend. Inside the bedroom, Reichardt found a Marlin .30-30 lever-action rifle, a Ted Williams 12-gauge shotgun with the barrel sawed off, a loaded Commando Mark .45-caliber assault rifle, a .30-caliber carbine, and another 12-gauge sawed-off shotgun. In addition to the firearms, police found 700 rounds of assorted ammunition of various calibers and gauges.

¶ 10 Juan Acevedo spoke with a police officer during that week. Acevedo revealed that, after the Gonzalez murder, Rangel, Michael "Loco" Rodriguez, and Delatorre drove to Acevedo's residence. The three used an outside water spigot to wash their faces and hands. At the time of this statement to police, Acevedo concealed the fact that the men also hid guns at his residence; it was not until the trial of defendant on the 2007 murder charges that Acevedo testified that the men hid firearms.

¶ 11 Testing on the weapons recovered from the Best Place apartment matched a spent .30-30 shell casing from the grassy area near the Gonzalez residence to the Marlin .30-30 rifle. Two of the spent shotgun shells recovered from the grassy area were matched to the Ted Williams 12-gauge shotgun. In addition, by April 1991, a fingerprint on the Commando Mark .45-caliber assault rifle was determined to belong to defendant.

¶ 12 In December 1990, Hector Rodriguez provided a recorded statement to the police. Rodriguez described a Latin Kings meeting that occurred before the Gonzalez murder. Rodriguez stated that, at that meeting, defendant instructed the members present to shoot opposing gang members, particularly members of the Insane Deuces, with whom the Latin Kings were at war, and defendant distributed firearms to the members to carry out the shootings. Defendant gave Rodriguez the .45-caliber assault rifle, gave Rangel the Ted Williams shotgun, and gave Delatorre the .30-30 Marlin rifle. Defendant also gave them instructions to shoot Gonzalez, the leader of the Insane Deuces. Rodriguez related that, on Halloween, he encountered defendant at a bar and defendant informed him that Gonzalez had already been shot. Rodriguez stated that, after Halloween, he observed Rangel and Delatorre return their weapons to defendant and, thereafter, he helped defendant move the firearms to another location to conceal them.

¶ 13 Late in 1990, the State began to prosecute cases arising from the Gonzalez murder. In December 1990, defendant was indicted in Kane County circuit court case No. 90-CF-1887 with six counts of unlawful possession of weapons by a felon ( Ill. Rev. Stat. 1991, ch. 38, ¶ 24-1.1(a) (now 720 ILCS 5/24-1.1(a) (West 2020))).

¶ 14 In March 1991, the State presented Hector Rodriguez's account to the grand jury. The State also presented Acevedo's statement corroborating Rodriguez's claim that the Gonzalez shooting was ordered at a Latin Kings meeting. In addition, the State presented Acevedo's account of the immediate aftermath of the shooting, in which Rangel, Michael Rodriguez, and Delatorre came to his house and used an outside spigot to wash their faces. The State presented information that, early in March 1991, Rangel bragged that he had shot Gonzalez. Rangel was eventually charged with the Gonzalez murder.

¶ 15 On May 28, 1991, defendant was indicted in Kane County circuit court case No. 91-CF-797. Defendant was charged with one count of solicitation to commit aggravated discharge of a firearm ( Ill. Rev. Stat. 1991, ch. 38, ¶ 8-1(a) (now 720 ILCS 5/8-1(a) (West 2020))), by directing Hector Rodriguez to shoot at Gonzalez, and four counts of unlawful possession of weapons by a felon (specifically two shotguns, a Marlin .30-30-caliber rifle and a Commando Mark .45-caliber rifle). We note that the count of solicitation to commit aggravated discharge of a firearm bears a handwritten modification of the date to October 28, 1990, with the original date being scratched out. There is no explanation or initials showing that the handwritten modification was properly agreed to and entered by the trial court.

¶ 16 In October 1991, Rangel was tried by a jury. He was acquitted after Acevedo offered perjured testimony establishing an alibi for Rangel.

¶ 17 In December 1991, defendant and the State entered into a plea agreement. Defendant pleaded guilty to the six counts of unlawful possession of weapons by a felon in case No. 90-CF-1887 and the four counts of unlawful possession of weapons by a felon in case No. 91-CF-797. In exchange for the guilty plea, the State agreed to nol-pros the solicitation count in case No. 91-CF-797. Defendant and the State did not reach any agreement regarding his sentence. At the sentencing hearing, the State presented Reichardt's testimony about defendant's role in the Gonzalez murder. Specifically, the State elicited that Reichardt had received information from Hector Rodriguez that defendant convened a meeting of the Latin Kings for the purpose of planning Gonzalez's shooting on Halloween, passed out weapons, and assigned shooting targets to the members present. In particular, Reichardt related that defendant gave Delatorre the Marlin .30-30 rifle and gave Rangel the Ted Williams 12-gauge sawed-off shotgun and instructed them to shoot at the Gonzalez residence. Forensic evidence subsequently determined that those weapons, the Marlin .30-30 rifle and the Ted Williams shotgun, had been used in the Gonzalez murder. Reichardt also reviewed his investigation and the recovery of the weapons from the Best Place apartment. The State presented other witnesses who testified about defendant's involvement in the Latin Kings gang and its structure at that time.

¶ 18 The State first argued that defendant should receive consecutive sentences because he was dangerous and the protection of the public warranted making the sentences consecutive. Defendant countered, agreeing with the unstated assumption in the State's argument that consecutive sentencing was unavailable because the offenses were based on a single act of possession. The...