People v. Rodriguez

1

2024 IL App (1st) 210907-U

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN RODRIGUEZ, Defendant-Appellant.

No. 1-21-0907

Court of Appeals of Illinois, First District, Third Division

March 13, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 04 CR 18035 Honorable Diane Gordon Cannon, Adrienne E. Davis, Judges Presiding

JUSTICE D.B. WALKER delivered the judgment of the court. Justices Mikva and Van Tine concurred in the judgment.

ORDER

D.B WALKER, JUSTICE

Held: We affirm the circuit court's order denying defendant relief on his postconviction petition. We correct the mittimus to reflect that defendant's 6-year sentence for aggravated battery with a firearm and 5-year sentence for aggravated discharge of a firearm are to run concurrently with one another, and consecutively with his 21-year sentence for first-degree murder.

¶ 1 Defendant Juan Rodriguez appeals from the Circuit Court of Cook County's order denying him the relief requested in his post-conviction petition. Following a jury trial, defendant was convicted of first-degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm in connection with the August 11, 2004 murder of David Reyes and shooting of Rosendo Diaz. Defendant filed an initial post-conviction petition on August 29, 2013. After revision, defendant's post-conviction petition alleged that he was actually innocent, multiple constitutional violations, and an error in sentencing. The circuit court conducted a third-stage evidentiary hearing and subsequently denied the petition. Defendant asserts on appeal that the circuit court erred in denying him a new trial and that the resentencing court erred in determining his sentence. We affirm the circuit court's decision and correct the mittimus.^[1]

¶ 2 I. BACKGROUND

¶ 3 A. Undisputed Facts

¶ 4 It is undisputed that at about 12:30 a.m. on June 27, 2004 a black pickup truck traveling westbound on 59th Street arrived at the intersection with Pulaski Road and stopped a few car-lengths back from the traffic light there. The truck was driven by Dean Valera. Riding in the cab were Ernest Villa in the passenger seat and Virginia Rojas in the middle. Seated in the bed of the truck were Rosendo Diaz, David Reyes, Raul Rivera, and Luis Torres. Everyone in the truck except Rojas was a member of the Satan Disciples gang. The truck's position three or four car-lengths from the intersection placed it in front of a yard where four Hispanic males were standing. The men in the yard were Shaid Frausto, Juan Garcia, Saul Herrera, and defendant. The two groups exchanged words, gang signs, and gang slogans, as it became apparent that the men in the yard were members of a rival gang, the Saints. At some point during this exchange, someone in the yard discharged a firearm multiple times. Rosendo Diaz was struck in the cheek, while David Reyes was struck in the back and killed. Beyond these core facts, the facts of this case are largely disputed.

¶ 5 B. Pretrial

¶ 6 Defendant moved to suppress Torres' lineup identification. At a pretrial hearing on the motion, defendant asserted that he was the only member of the lineup that matched the description of "long hair, male Hispanic, with a tear drop" and therefore the lineup was impermissibly suggestive. The State argued in response that the participants in the lineup were made to wear handkerchiefs "so that the hair for the most part was covered," and that the participants were all of approximately the same height and age. The State asserted that the teardrop was "one of the least noticeable things about everybody in that lineup." Defendant argued in response that the fact that even those witnesses who were unable to give a description picked defendant demonstrates that his teardrop tattoo rendered the lineup impermissibly suggestive. The trial court concluded that the lineup was not "overly suggestive" and denied the motion.

¶ 7 C. Trial

¶ 8 The State argued at trial that defendant was the shooter, while defendant asserted that it was Juan Garcia who fired the shots that night.

¶ 9 1. Luis Torres

¶ 10 Torres testified that he had attended a block party earlier in the night with Diaz, Villa, and Valera. After leaving that party, the four went and picked up Reyes and Rivera, followed by Rojas. Torres believed that only Villa had begun drinking before the group left the block party. The group of seven was heading to a club when they stopped at the intersection of 59th and Pulaski. Torres testified that four or five men were gathered near a car parked on the street on the passenger side of the truck, including defendant, who he noted to have had long hair at the time. Those men initiated the exchange by "[throwing] down the pitchfork," which is to say displaying the symbol of the Satan Disciples upside-down to show disrespect. An exchange of gang signs and slogans followed.

¶ 11 Torres testified that after the initial exchange ended, defendant "yelled something" and ran into the gangway beside the house in front of which the group had been standing. Torres lost sight of defendant. During that time, the exchange of "yelling and hand signs" continued and a "bald headed gentleman came out" and began yelling at the people in the truck to not cause any problems. Torres testified that he was trying to tell the bald-headed man that they were leaving, at which time defendant returned to the yard and Torres heard the first gunshot. Torres stated: "I looked towards him again and I just seen sparks coming." Torres saw the sparks from in front of defendant while defendant had his hands extended forward and held together in front of him. Immediately after this first gunshot, Torres felt glass hit his elbow, and he ducked down into the bed of the truck as the truck sped away.

¶ 12 As the truck was leaving the area, Torres noticed that Diaz was bleeding from his cheek and Reyes was slumped over, unresponsive, and bleeding from the back. As they were fleeing, Torres noticed a police car in pursuit with its emergency lights activated. Valera pulled the truck over and a plain clothes officer approached with his weapon drawn. The occupants of the truck explained that their friends had been shot and the officer called for backup. Two of the officers went back with Torres to the house where the shooting took place. Upon seeing defendant, Torres identified him as the shooter. Torres confirmed that defendant was the only long-haired individual present when he and the police returned, as well as the only individual present with a teardrop tattoo. Torres went with the police to the police station and viewed a lineup, in which he identified two of the five individuals in the lineup, defendant and Alexea Gutierrez, the so-called "bald headed man" who had asked the people in the truck not to cause trouble. Later testimony from Detective Michael Hughes established that Torres identified a third individual in the lineup, Herrera, as present in the yard at the time of the shooting. Torres was also shown an array of photographs in which he identified Garcia as one of the people in the group on the sidewalk. Torres testified that he had not seen any of the three identified individuals holding a gun, but had only seen sparks coming from in front of defendant's hands at the time of the shooting.

¶ 13 Torres testified on cross-examination that he had been told by someone that a King (a rival gang member) with long hair and a teardrop tattoo lived at the house where the shooting unfolded. Torres also stated that after he and others from the truck were at the police station, they were put in a room together. Torres testified on redirect examination that he did not speak with anyone else in the truck about the identity of the shooter in the time between when the truck sped away and when he viewed the lineup and photo array.

¶ 14 2. Virginia Rojas

¶ 15 Rojas, who was seated in the cab of the truck, also testified that the truck arrived at the light, four or five men were standing in the yard, and an argument ensued. She saw defendant, whom she recognized from meeting him once previously at a party, coming from the gangway next to the house where the truck was stopped. Valera then pushed Rojas down in her seat and she heard three gunshots. Rojas picked the defendant out of a lineup on the night of the shooting and also identified defendant in court as the person she saw coming into the front yard from the side of the house just before she heard shots.

¶ 16 3. Rosendo Diaz

¶ 17 Diaz, who was in the back of the truck, testified similarly to Torres as to the events leading up to the verbal confrontation and the content of the confrontation. Diaz identified defendant in court as one of the people he saw in the yard. He saw defendant run in the direction of the gangway beside the house. He said an older man was present and was yelling that he did not want trouble. Diaz stated that while the older man was yelling, he felt his face get very warm on the left side. Diaz confirmed that although he could not recall it clearly at the time of his testimony, he did previously testify to a grand jury that he saw defendant with his hand under his shirt at his waist, as if to draw a weapon, though he never saw a gun. He realized he was bleeding and heard "like four" gunshots as the truck sped away. After the truck was stopped by the police Diaz was taken to the hospital by ambulance. He was later taken to Chicago Police Department's Area 1 with the others from the truck. Diaz confirmed that all of the people from the truck were placed in the same room and had an opportunity to...