People v. Salas

2011 IL App (1st) 091880

356 Ill.Dec. 442

961 N.E.2d 831

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

v.Samuel SALAS, Defendant–Appellant.

No. 1–09–1880.

Appellate Court of Illinois, First District, First Division.

Nov. 21, 2011.Rehearing Denied Jan. 4, 2012.

Michael J. Pelletier and Deborah Nall, both of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michelle Katz, Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.

Children and Family Justice Center, Bluhm Legal Clinic, of Northwestern University School of Law, Chicago (Cathryn S. Crawford, Shobha L. Mahadev, of counsel), and National Juvenile Defender Center, Washington, D.C. (Nadia Seeratan, of counsel, and Samuel Golberg, law graduate), amici curiae.

OPINION

Justice ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Defendant, Samuel Salas, appeals his conviction of first-degree murder and his sentence of 50 years' imprisonment. Defendant contends: (1) the automatic transfer provision of the Juvenile Court Act of 1987 (automatic transfer statute) (705 ILCS 405/5–130 (West 2008)), pursuant to which defendant was transferred to adult court, violates the due process clauses of the federal and state constitutions, the eighth amendment of the federal constitution, and the proportionality clause of the Illinois Constitution; (2) the circuit court erred by refusing to give a second-degree murder instruction where the court instructed the jury on self-defense; (3) his trial counsel provided ineffective assistance; (4) defendant was deprived of his constitutional right to be present for the jury instruction conference; and (5) the State made improper remarks during closing arguments. We affirm.

¶ 2 The 16–year–old defendant was charged with the first-degree murder of the victim, Sergio Ojeda. Because of his age and the nature of his offense, defendant's case was automatically transferred to adult criminal court pursuant to the automatic transfer statute (705 ILCS 405/5–130 (West 2008)), which provides, in pertinent part, that 15– and 16–year–old defendants charged with first-degree murder are to be prosecuted under the Criminal Code of 1961 (720 ILCS 5/1–1 et seq. (West 2008)) and not the Juvenile Court Act of 1987.

[356 Ill.Dec. 446] ¶ 3 Defendant's jury trial followed. At trial, 12–year–old Emmanuel Torres testified that in September 2007, he lived on the second floor of an apartment building at 4511 South Spaulding Avenue in Chicago. Sergio lived in the same building and dated one of Emmanuel's sisters. After getting out of school at approximately 3:40 p.m. on September 11, 2007, Emmanuel played soccer with some friends in front of Berenice Lopez's house, which was down the street from Emmanuel's apartment building. Sergio was in an alley playing soccer with some of his friends. Emmanuel heard four or five gunshots, looked toward the alley, and saw Sergio trying to open a fence. Emmanuel saw a Hispanic guy in a white shirt and jeans with long, “puffy” hair shoot Sergio with a black gun from about two feet away. Sergio did not have a gun in his hands. Emmanuel did not see anyone other than the shooter and Sergio in the alley at that time. Emmanuel did not get a good look at the shooter's face.

¶ 4 Emmanuel testified he ran across the street to a friend's house. Emmanuel went inside the house and then peeked out a window. Emmanuel saw a group of “gangbangers,” including three guys named Salvatore, Fernando, and Vince, beating the shooter. The gangbangers had been playing soccer with Sergio prior to the shooting.

¶ 5 Emmanuel testified he spoke to police after the shooting. Emmanuel told the police he saw a guy riding a bicycle and he saw a guy in a white shirt shoot Sergio four or five times. Emmanuel walked around the area with the police officer and pointed out where the shooting occurred. Emmanuel testified he did not remember telling the police officer and an assistant State's Attorney that he saw two guys walking on 45th Street, that he saw two guys walking who turned onto Spaulding Avenue, that he saw two guys riding bicycles, or that he saw two guys walking up the street yelling at other people.

¶ 6 Berenice Lopez testified that on September 11, 2007, she lived on the second floor of an apartment building at 4531 South Spaulding Avenue in Chicago with her parents and her two children. Sergio was her neighbor. Shortly before 6 p.m. on September 11, 2007, Berenice was outside her building, waiting for her mother-in-law to pick up her son. Berenice saw Sergio two houses away, walking toward an alley with Fernando, Salvatore, and Rego. After her mother-in-law picked up her son, Berenice tried to get back inside the apartment building, but the front door was locked. She began walking toward the back door, which was by the alley. Berenice saw Sergio in the alley, running toward 45th Street. She saw nothing in his hands. Defendant, who was wearing a white shirt and jeans, was running behind Sergio. Defendant had something black in his hand that he was holding out with an extended right arm. Berenice did not see anyone else in the alley. Sergio was trying to open the gate to the yard where Berenice lived. Berenice turned away and heard four or five gunshots. Berenice turned back around and saw defendant running toward 46th Street. Sergio was lying on the ground by the gate.

¶ 7 Berenice testified she went to Sergio and saw that he was bleeding from the head. She ran back to the front of her building and screamed for someone to call 911. Then she saw Fernando, Rodriguez and Vincent run over to defendant, who was three houses away from her, and they began beating him. Berenice ran over and told them to stop. Defendant grabbed Berenice and pulled her on top of him. As she tried to get up, Berenice saw a gun on the ground. Berenice testified the gun had to have come from defendant because it fell on her side and defendant was the only other person on the ground near her. Fernando picked up the gun with his shirt and began running toward 46th Street and Sawyer Avenue. The police arrived and defendant ran.

¶ 8 Berenice testified she went to the police station on the evening of September 11, 2007, and spoke with Detective Henry about the shooting. He showed her a photo array. Berenice identified a photograph of defendant as the person who shot Sergio. Berenice returned to the police station on October 3, 2007, and picked defendant out of a lineup as the person who shot Sergio.

¶ 9 Yvonne Nevarez, a Chicago public school teacher, testified that, on September 11, 2007, she was living at 4546 South Spaulding Avenue in Chicago. At approximately 6 p.m. on that date, she was in the alley packing up her father's truck when she heard a noise and saw defendant, who was wearing jean shorts and a white T-shirt, get off a bicycle and run toward her with a black gun in his hand. Defendant ran inside Yvonne's house, and she followed him inside. Yvonne's sons, ages 9 and 15, were also inside the house. Yvonne told defendant to get out of her house. Defendant said, “Save me.” Then defendant ran out the front door with the gun still in his hand. Defendant crossed the street, where other teenage boys began beating him. Yvonne called 911.

¶ 10 Yvonne testified that later that evening, a detective came to her house and showed her a series of photographs. She identified a photograph of defendant as the person who ran into her house with a gun. On October 3, 2007, Yvonne went to the police station and picked defendant out of a lineup as the person who ran into her house with a gun.

¶ 11 Vincent Denova testified that on September 11, 2007, he lived at 4637 South Spaulding Avenue in Chicago and was a member of the SD gang, also known as the Satan Disciples. The 4600 block of South Spaulding Avenue was Satan Disciple territory. Vincent admitted he lied when he told the police and the grand jury that he was not a Satan Disciple.

¶ 12 Vincent testified that at approximately 6 p.m. on September 11, 2007, he was in the alley between Spaulding and Sawyer Avenues playing soccer with Sergio, Fernando Diaz, Salvatore Diaz, another boy named Fernando, and Rego. Vincent identified Fernando Diaz and Salvatore Diaz as Satan Disciples, but stated that the other Fernando, Rego, and Sergio were not Satan Disciples. They stopped playing when the ball went over the gate. They went to the front of a nearby house and started talking and drinking beer. Rego stated he needed his ball back. Sergio went through the gangway toward the alley to retrieve the ball. Vincent followed him from a couple of feet away. When Sergio reached the alley, he turned to the left and began running. Vincent then saw a light-skinned, Hispanic male, wearing a white shirt and holding a gun, start shooting. Vincent could not see the shooter's face. Vincent heard four or five gunshots and then ran and hid between a couple of nearby buildings.

¶ 13 Vincent testified that, after the shooting stopped, he heard Berenice screaming that Sergio had been shot. Vincent came out of hiding and saw that Sergio was lying facedown on the ground with his hand holding onto the gate that surrounded Berenice's backyard. Vincent heard Salvatore and Berenice say, “He's right there.” People were pointing at a guy in a white shirt who was standing between Vincent and Salvatore.

[356 Ill.Dec. 448] ¶ 14 Vincent testified he, Fernando Diaz, the other Fernando, and Salvatore began beating the guy in the white shirt, who fell to the ground. Vincent kicked him and hit him with a brick. Vincent saw a gun fall from the guy's waist. Berenice ran over and tried to stop them from beating him. The guy grabbed Berenice and pulled her down on top of him. Vincent kicked him in the face and he let Berenice go. The police arrived and the guy got up and ran away.

¶ 15 Vincent testified that police officers showed him some photographs...