People v. Quezada

2022 IL App (2d) 200195

219 N.E.3d 499

467 Ill.Dec. 489

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

v.Olvan QUEZADA, Defendant-Appellant.

No. 2-20-0195

Appellate Court of Illinois, Second District.

Filed June 30, 2022

Rehearing denied July 28, 2022

Steven Greenberg and Curt Lovelace, of Greenberg Trial Lawyers, and Andrew S. Gable, both of Chicago, for appellant.

Eric F. Rinehart, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Lynn M. Harrington, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 Following a jury trial, defendant, Olvan Quezada, was convicted of attempted murder of a police officer ( 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2014)), aggravated discharge of a firearm (id. § 24-1.2(a)(3)), unlawful possession of a firearm by a street gang member (id. § 24-1.8(a)(1)), and possession of a defaced firearm (id. § 24-5(b)). Defendant's posttrial motion was denied. On December 16, 2019, the court sentenced defendant to 27 years’ imprisonment and, on March 4, 2020, denied defendant's motion to reconsider the sentence. Defendant appeals. For the following reasons, we reverse defendant's convictions and remand for a new trial on all counts except unlawful possession of a firearm by a street gang member.

¶ 2 I. BACKGROUND

¶ 3 For context, we summarize that, in the early morning hours of June 17, 2016, police arrived at the Briarwood apartment complex in Waukegan to address a domestic dispute. After that dispute was resolved, while police officer John Szostak was writing a report, a gunshot was fired (the first shooting). Additional officers arrived on the scene to investigate the gunshot, and then more shots were fired in the officers’ direction (the second shooting). Police later arrested defendant and Dominic Longmire, after a gun was found underneath a couch cushion at Longmire's apartment, where defendant had been sleeping. Defendant was ultimately charged with crimes stemming from the second shooting.

¶ 4 A. Trial

¶ 5 1. Shootings and Arrests

¶ 6 On June 17, 2016, at around 1:48 a.m., Szostak responded to a domestic call at 3055 Arthur Court in the Briarwood apartment complex. Jonathan Cardona (Hispanic), William Servin (Hispanic), and Longmire (African-American) were present, as well as Elise Salas (Cardona's fiancé) and some of Cardona's family members. Defendant was also present before police were called but had left by the time Szostak arrived. After the domestic dispute was resolved, Cardona agreed to leave the apartment with Servin and Longmire. Szostak returned to his car to write his report, and then, around 2:25 a.m., he heard two gunshots. He saw Cardona, Servin, and Longmire running, and he ordered them to stop. Servin and Cardona ultimately complied, although Longmire ran away. When Cardona walked over and put up his hands, a spent shell casing fell from him. Servin and Cardona were handcuffed and put in separate squad cars. A bit later, Szostak heard several more gunshots. He saw a subject running westbound. Later, he arrived at Longmire's apartment and identified him as the third subject who had been with Cardona and Servin, but who had run away from him. Szostak testified that he never saw defendant at the domestic call; no mention was made to him about a gun being there.

¶ 7 Salas testified that Cardona was her fiancé and she lived with him on June 17, 2016. On that date, there was a gathering in Cardona's apartment with Cardona, Servin, Longmire, and defendant present. She did not know defendant; he was already there when she arrived home from work. Salas and Cardona's mother thought defendant "was a little bit off" and was looking at people strangely. Someone passed around a gun, but Salas could not recall who took out the gun or who put it away. "Everybody" held the gun at some point. After a fight broke out between Cardona and his sister, the police were called, although defendant left before they were called. The police spoke with the family, and Cardona left with Longmire and Servin. Afterwards, Salas heard a gunshot and ran outside; she saw Cardona and Servin running and then being stopped by police and put in a squad car. She then heard a second round of gunshots. At the police station and at trial, Salas identified lineup photographs of Cardona, Servin, Longmire, and defendant, as well as a picture of a gun that looked like the one passed around the apartment. She had written on the picture that a man who looked like "Wolverine," i.e. , defendant, took the gun out of his back pocket. Although, at trial, she could not recall seeing defendant leave the apartment, she wrote in her police statement, "[a]s soon as Wolverine Man had heard my in-laws on the phone with 9-1-1, he had ran [sic ] out the door taking the gun with him."

¶ 8 Detective Brian Maschek testified that he arrived at the Briarwood apartment complex around 2:35 a.m. Other officers were already on the scene, and Cardona and Servin had already been placed in the back of separate squad cars. Maschek was tasked with processing evidence—specifically, a fired bullet casing that had fallen from Cardona's T-shirt and was found on the pavement. Maschek testified that, while he and the two other officers huddled around the bullet casing, "that's when I began to hear I guess I heard somebody yell, ‘F*** the police,’ " followed by five gunshots. He did not hear someone yell, "I'm going to shoot." Maschek heard a whistling sound and felt a projectile going over his head, and he and the other officers took cover. According to Maschek, the shots sounded as though they came from the west, near the complex's pool. Maschek ultimately recovered and processed four cartridges and fired bullet casings—three in the grass near the pool area and one in the parking lot. The bullets that hit parked vehicle windshields did not appear to have been fired from a weapon being shot straight up into the air; rather, they appeared to have been fired in a horizontal trajectory.

¶ 9 Officer Angela Divirgilio testified that she heard yelling prior to the shots and that the shots seemed to come from the northwest, near the basketball court and the pool (although on cross-examination she agreed that she did not see exactly from where they came). After the shots, she saw someone in that area running in a white top, "maybe a tank top."

¶ 10 Officer Jason Lau also heard shouting prior to the shots, but he did not hear what was said. while he was "pretty convinced" that the shots came from the west, the buildings and the parking lot created "kind of a funnel" and the shots could have been coming from anywhere. Further, "the radio traffic kind of muddied things up because everybody was saying different things about where they thought the shots were coming from."

¶ 11 Detective Christopher Llenza and Sergeant John Spiewak were at the scene around 2:45 a.m., after the second shooting, and they stood near a dumpster and a fence on the northeast corner of the complex's property line, looking down the south and west perimeters in case any suspects ran from the presumed location of the shots to the north or east. They were trying to be quiet as they looked around, and then they heard a man talking. A man pulled up on the fence with both hands and peeked his head over it. Spiewak shined his flashlight on the man and identified himself as a police officer, and the man said "s***" and ran east toward Green Bay Road. Both officers identified defendant as the person who looked over the fence and ran from them. They tried to chase defendant as he ran north toward another apartment complex; the path and the grounds were wet and swampy. Llenza and Spiewak later went to Longmire's apartment, where they identified defendant as the person who had been on the fence and ran away. Defendant was wearing the same clothes as before, including a dark shirt, and the bottom of his jeans was wet and covered with grass.

¶ 12 After processing evidence at the shooting scene, Maschek was also asked to collect items at 322 North Green Bay Road, in an apartment belonging to Longmire and his mother. There, a .9-millimeter Keltec semiautomatic handgun was recovered underneath a couch cushion. The weapon's serial number was defaced. In addition, Maschek was directed to two pairs of tennis shoes—white and red Nike Air Jordans, wet with debris and mud on them, and purple and black Nikes, also wet. Further, in the bathroom, one wet sock and gray sweatpants were on the floor in front of a sink vanity and, on the vanity, there was an open bottle of liquid soap or body wash and dirt around the sink.

¶ 13 Officer Michael Sliozis testified that he collected video evidence from the crime scene. Specifically, he collected and reviewed a video retrieved from a security camera that was mounted on a maintenance shed near the pool. The camera pointed north and recorded, around the relevant time, a person raising his left arm. Sliozis testified that he had been a police officer for 16 years and it appeared that the person on camera held a gun. Sliozis also testified that the video showed dust falling, which could signify multiple gunshots disrupting and causing dust to "shake off" near the camera area. The video did not have any audio, so it did not record the sound of gunshots. The video was admitted without objection and published to the jury. Sliozis also helped process, book, and collect evidence from defendant. The evidence he collected included white Nike shoes, blue jeans, and a shirt. Sliozis testified that he collected from defendant a white shirt, although the State later referred to it as a black Nike T-shirt and confirmed with Sliozis that he collected from defendant the same black Nike T-shirt that is seen in the security video. Defendant did not have a firearm owners identification (FOID) card on him.

¶ 14 Longmire's mother, Tara Longmire, testified that she lives with...