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FIRST DIVISION
August 15, 2005

No. 1-03-3196
  

JUSTICE GORDON delivered the opinion of the court:

Defendant, Jose Rojas, appeals from his convictions for first degree murder by personally discharging a firearm and first degree murder while armed with a firearm after a jury trial. He was tried with his codefendant Erik Ramirez before separate juries that were excused at those points necessary to protect them from duplicative or inadmissible testimony. He contends that the State failed to prove his identity as the shooter of Alberto Villagomez beyond a reasonable doubt. Defendant further contends that the circuit court erred in admitting testimony surrounding his alleged intimidation of a witness, and argues that his trial counsel was incompetent for failing to preserve the issue of the erroneous admission of his statements for review. Alternatively, he argues that if trial counsel opened the door for the introduction of the witness-intimidation testimony through his cross-examination of the witness, then counsel was incompetent for opening the door. Finally, defendant contends that trial counsel was incompetent in failing to move to suppress his arrest and the evidence obtained in the search of his car. We affirm.

FACTUAL BACKGROUND

At defendant's trial, Rodolfo Guzman testified that he and his friend, the victim, Alberto Villagomez, spent time together starting around 6:30 p.m. on April 20, 2001. Guzman testified that both he and Villagomez were former members of the Two Six street gang. While together, the two drank beer. Later that night, they attended a party where they continued to drink as well as ingest "key shots" of cocaine, the amount that could be held on the end of a key. Guzman denied any intoxication from the cocaine, however.

Guzman explained that he and Villagomez left the party after midnight to get food. As they drove to a restaurant on Pulaski Street, a gray van pulled up alongside them. The side door of the van opened, and while the occupants of the van flashed gang symbols and screamed at them, someone threw a bottle at Villagomez' car, breaking one of its windows.

According to Guzman, Villagomez then drove his car into a gas station at 28th Street and Pulaski to clean up the broken glass inside the car. Once stopped, Guzman went to the gas station clerk to get change for the station's coin-operated vacuum. Guzman then went behind the gas station, to an alley, to urinate.

While in the alley, Guzman saw a white Suburban sport utility vehicle (SUV) approach. The front passenger made a Two Six gang sign with his hands. Guzman testified that, in order to avoid any trouble, he made the same sign back. At that point, the passenger exited the SUV and he and Guzman exchanged words. When he saw a gun in the passenger's hand, Guzman started to run back across the gas station and shouted to Villagomez to flee as well. Guzman heard shots, turned around, and saw the SUV passenger shoot Villagomez. The gas station clerk testified to hearing a series of shots and, shortly thereafter, observing Villagomez enter the shop, clutching his stomach and asking for help, and then collapsing. According to a Cook County medical examiner, Villagomez was shot five times in the back, each shot subsequently exiting his body, and died from his wounds.

William Wright and Luis Cerritos testified that they were members of the Latin Kings street gang, like defendant. Both testified that the Latin Kings and Two Sixers were rivals. Wright and Cerritos were drinking with others in a garage in the late evening of April 20 and early morning of April 21 when defendant arrived in his white Suburban SUV, which had a broken window. Codefendant Ramirez, who was already at the garage, approached the SUV and had a conversation with defendant. Ramirez then got in the passenger side of the SUV and told Wright and Cerritos to get into the backseat, which they did.

Both Wright and Cerritos testified that defendant related that Two Sixers broke his window and that he wanted revenge. Defendant drove to the border of Latin King and Two Six territory. At that point, defendant and Ramirez changed seats and Ramirez drove the group into Two Six territory. As Ramirez drove the Suburban into an alley behind a gas station, they observed a young man standing behind the station. According to both Wright and Cerritos, defendant, though a Latin King, then flashed a Two Six hand symbol. When the man reciprocated with the same symbol, defendant chased after him with a gun he had retrieved from inside the Suburban's dashboard. Wright and Cerritos heard shots fired, and when defendant returned, they drove away. In the process of fleeing the area, Wright and Cerritos explained that a dark Cadillac chased them until defendant shot at that car.

Defendant's trial counsel attempted to discredit both Wright's and Cerritos' testimony by eliciting that both originally denied knowledge of the murder and only implicated defendant after the police informed them that they had been identified as being involved in the shooting. On redirect examination, to explain its witnesses' changing accounts of events, the State elicited from Cerritos that Latin Kings were instructed that they would be killed if they ever aided the prosecution of a fellow gang member, and elicited from Wright that defendant repeatedly told him not to "trick on him," meaning not to implicate him in the offense. This testimony on redirect was admitted over defendant's trial counsel's objection that it exceeded the scope of his cross-examination.

Chicago police sergeant Lance Becvar testified about the events surrounding defendant's arrest. Becvar was on patrol on the morning of April 21, 2001, and heard a shot fired in the vicinity of 30th Street and Lawndale. Approximately five seconds later, a white Suburban SUV sped past his patrol car going between 10 to 20 miles over the speed limit. Becvar pulled his car behind the SUV and radioed that he was following a vehicle he believed to be involved in a shooting. Around 30th Street and Central Park Avenue, Becvar activated his police lights and pulled the SUV over. He identified defendant in court as the front-seat passenger and Ramirez as the driver.

Once backup arrived, all four occupants of the SUV were ordered out of the vehicle. Becvar searched the SUV and discovered a gun hidden behind the center air-conditioning duct in the dashboard. Later, police brought Guzman to the scene, where he identified defendant as the person who shot Villagomez.

Police evidence technicians recovered a bullet lodged in a van parked across the street from the gas station. Testing of the bullet revealed that it had been fired from the gun Becvar recovered from defendant's SUV. However, testing did not reveal defendant's fingerprints on the gun. Likewise, tests performed on defendant's hands were negative for the presence of gunshot residue, though a forensic scientist testified that his hands also failed to test positive for gunshot residue after he fired the gun once and explained that environmental factors, including wind, could produce negative results.
 

ANALYSIS

I. Sufficiency of the Evidence

Defendant first contends that the State failed to prove his guilt beyond a reasonable doubt since there was no physical evidence to tie him to the crime and the State's witnesses were wholly incredible in identifying him as the shooter. We disagree.

To determine whether sufficient evidence was presented to sustain a conviction, a reviewing court must consider all the evidence in the light most favorable to the State, and then determine if a rational trier of fact could have concluded that the State proved the elements of the crime charged beyond a reasonable doubt. People v. Cox, 195 Ill. 2d 378, 387 (2001). "Under this standard, a reviewing court must allow all reasonable inferences from the record in favor of the prosecution." People v. Bush, 214 Ill. 2d 318, 326 (2005). Although the determinations of the trier of fact are not conclusive, they are entitled to great deference, so that a conviction will only be overturned where the evidence "is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." People v. Ortiz, 196 Ill. 2d 236, 259 (2001). A reviewing court will not retry the defendant. People v. Green, 322 Ill. App. 3d 747, 754 (2001).

Specifically, with regard to defendant's identification by Guzman, a single witness identification of the accused as the person committing the crime may be sufficient proof when the witness viewed him under circumstances permitting a positive identification. People v. Lewis, 165 Ill. 2d 305, 356 (1995). But, a conviction cannot stand when a witness' identification of the accused as the criminal perpetrator is vague and doubtful.People v. Ash, 102 Ill. 2d 485, 494 (1984). In People v. Slim, 127 Ill. 2d 302 (1989), our supreme court said that in assessing identification testimony we should use the following factors set out in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972): "(1) the opportunity the [witness] had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the [witness] at the identification confrontation; and (5) the length of time between the crime and the identification confrontation." Slim, 127 Ill. 2d at 307-08. However, we should also consider all circumstantial facts to determine the sufficiency of the identification. People v. Young, 269 Ill. App. 3d 120, 123 (1994).

Defendant points out that Guzman never testified as to the exact amount of time he observed the gunman and contends that circumstances would suggest only a brief observance. He argues that the panic that occurred following Guzman's seeing the gun and his subsequent flight, with a focus on warning Villagomez, limited the degree of his attention on the shooter. He contends that Guzman's use of intoxicants precluded a sufficient identification. Further, he contends that Guzman's credibility surrounding the identification was impeached since Guzman testified to identifying defendant from the squad car in which he was brought to Central Park Avenue, while Wright testified that the witness was brought out of a squad car to make an identification. Finally, defendant argues that Guzman's identification was revealed to be "frail" by his impeachment by stipulated testimony that he told police that he and Villagomez had left the party to buy drugs, whereas he testified to leaving to buy food. While these are valid arguments for attacking an identification, we do not find them sufficient to render the identification vague and doubtful to the point where no rational jury could have credited Guzman's identification of defendant.

To begin, not all of Guzman's observation of the shooter occurred while he was in a state of panic or flight. A fair inference, and, again, all reasonable inferences must be drawn in favor of the State on review (Bush, 214 Ill. 2d at 326), is that Guzman had sufficient opportunity and attention to identify defendant while he flashed the Two Six gang sign and during their exchange of words, moments at which defendant did not yet appear as an actual threat to his life. Moreover, it is also reasonable to infer that defendant was put before Guzman for identification only a short time after his initial observation. Defendant was arrested close to the murder scene, while he fled from that scene. Sergeant Becvar testified that Guzman was brought to the arrest scene only 15 minutes after he stopped the SUV. Finally, though he admitted ingesting cocaine, Guzman testified to feeling no effect from the small amounts he claimed to have taken. These facts and inferences reasonably allow the conclusion that Guzman's identification of defendant as the shooter was legally adequate.

Regarding Guzman's supposed impeachment, we note that "it is the function of the jury as the trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. It is also for the trier of fact to resolve conflicts or inconsistencies in the evidence. [Citations.]" People v. Tenney, 205 Ill. 2d 411, 428 (2002). Therefore, we will not "substitute [our] judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses." Tenney, 205 Ill. 2d at 428. Nor will we reverse a conviction " ' "simply because the defendant tells us that a witness was not credible." ' [Citation.]" Tenney, 205 Ill. 2d at 428. The arguments made before this court were also made to the jury below and we, therefore, will not usurp its role in determining whether they raised a reasonable doubt. See Tenney, 205 Ill. 2d at 428-29 ("the jury was fully aware of [the witness' testimony's] alleged infirmities. *** It was the jury's function to draw conclusions based on the evidence and to decide whether there was a reasonable doubt as to defendant's guilt").

These same considerations apply to defendant's challenges to the testimony of Wright and Cerritos. It is true that the two could not agree as to at which beach they and friends had spent the day before going to the garage where they met defendant, Wright claiming the beach at 95th Street, Cerritos stating the beach adjacent to Navy Pier. Also both admitted to drinking throughout the day leading up to when they joined defendant in his SUV. The two were inconsistent as to the identification procedure used by the police. Moreover, both initially denied knowledge of the murder. However, as before, these factors were put before the jury for its consideration and it was unpersuaded. See Tenney, 205 Ill. 2d at 428-29 ("the jury was fully aware of [the witness' testimony's] alleged infirmities. *** It was the jury's function to draw conclusions based on the evidence and to decide whether there was a reasonable doubt as to defendant's guilt").

Defendant nevertheless stresses that accomplice testimony is always suspect, a fact acknowledged by the trial court when it issued a cautionary instruction regarding such testimony. Defendant therefore contends that Wright's and Cerritos' testimony could, therefore, not suffice to sustain the conviction. However, as stated in Tenney, "the testimony of an accomplice witness, whether corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant's guilt beyond a reasonable doubt." Tenney, 205 Ill. 2d at 429. Moreover, here their testimony surrounding the actual execution of the murder was explicitly corroborated by Guzman. We therefore find sufficient evidence for defendant's conviction to stand.
 

II. Introduction of Witness-Intimidation Evidence

Defendant next contends that the trial court erred in admitting Wright's testimony on redirect examination that defendant sought to intimidate him into not cooperating with the police by telling him not to "trick." He appears to argue, initially, that the court should have stood by a ruling that Wright's testimony was inadmissible on account of its nondisclosure in discovery. He further argues that the trial court erroneously concluded that the testimony, which would otherwise have gone beyond the scope of cross-examination, became admissible through trial counsel "opening the door" through his cross-examination. Finally, defendant contends that admission of Wright's testimony was particularly prejudicial because the State used defendant's testimony as proof of consciousness of guilt. We disagree.

We may quickly dispose of defendant's first argument because, as a matter of fact, defendant's statements were never excluded by the trial court for a discovery violation. The record discloses that trial counsel for defendant acknowledged receipt of Wright's grand jury testimony, which contained Wright's account of defendant's intimidating statements, on June 27, 2001, during discovery, and almost two years prior to defendant's trial. Rather, it was the intimidating statements allegedly made by Ramirez to Wright that were excluded for nondisclosure in discovery when the State informed Ramirez's counsel of their existence only on the day preceding trial. The colloquy which defendant contends supports his interpretation of the trial court's ruling actually makes the distinction between the court's treatment of defendant's statements and Ramirez's statements explicit.

"MS. KAZAGLIS [Assistant State's Attorney]: [Mr. Wright] did tell me that Mr. Ramirez when they were in the lockup also told him not to say anything in addition to Mr. Rojas. *** that statement of Mr. Ramirez I don't intend to elicit on direct of this witness.

MR. COHEN [counsel for Ramirez]: Your Honor, I would ask that it not be elicited on direct or cross.

THE COURT: What?

MR. COHEN: The last one, that my client somehow intimidated Mr. Wright to not say anything. This is the first time I've heard of it in what, almost two years.

THE COURT: When did that occur?

MS. KAZAGLIS: Judge, according to Mr. Wright, that occurred at the time he was in the 10th District lockup. He and Mr. Serritos [sic] were in one cell, Mr. Rojas and Mr. Ramirez were in another cell. I have already tendered to both counsels statements that Mr. Rojas made regarding his intimidation, his statements to be quiet. Mr. Wright today told me, although I have spoken to him before, that Mr. Ramirez in addition said don't say nothing[sic].

MR. COHEN: Well, I think that goes to his credibility. But clearly I haven't heard about that for two years since the date of arrest and I think it's improper.

THE COURT: Is that statement contained in any discovery that's been tendered?

MS. KAZAGLIS: No, judge, I'm stating it today for the first time.

THE COURT: Then it will not be admitted." (Emphasis added).

Clearly, the above colloquy only addresses Ramirez's statements, not those of defendant which the State previously disclosed.

With respect to defendant's second argument, that the State's elicitation from Wright on redirect examination of defendant's intimidating statements to Wright went beyond the scope of cross-examination, we note, and defendant concedes, that he has waived review of this contention by failing to challenge the admission of the statements in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (holding that a trial objection and a challenge in a written posttrial motion are necessary to preserve an error for plenary review). However, defendant claims to be entitled to a review of his contention under the plain error doctrine. We disagree.

Supreme Court Rule 615 allows us to notice "[p]lain errors or defects affecting substantial rights *** although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). However, this review is restricted to "two limited circumstances": first, where the evidence is closely balanced; second, where the waived errors "are of such magnitude that there is a substantial risk that the accused was denied a fair and impartial trial, and remedying the errors is necessary to preserve the integrity of the judicial process." People v. Vargas, 174 Ill. 2d 355, 363 (1996).

As to the first circumstance, as we suggested in our review of defendant's sufficiency of the evidence challenge, we do not perceive the evidence in this case to be close. Guzman presented strong identification testimony against defendant, and Cerritos presented an account of events incriminating defendant that substantially interlocked with Wright's account. In light of this evidence, we cannot see defendant avoiding his conviction even with the removal of the witness-intimidation evidence.

Regarding the second circumstance under which plain error may be recognized, we must first determine if any error occurred. People v. Richmond, 341 Ill. App. 3d 39, 47 (2003). Only after finding an error by the court below should a reviewing court determine if the error was of such magnitude that remedying the error " 'is necessary to preserve the integrity of the judicial process.' " Richmond, 341 Ill. App. 3d at 47, quoting Vargas, 174 Ill. 2d at 363. Applying this review to defendant's case, we find no error by the trial court.

As defendant admits, the admission of evidence is left to the sound discretion of the trial court (People v. Kirkman, 241 Ill. App. 3d 959, 964 (1993)), as is the scope of redirect examination (People v. Araujo, 261 Ill. App. 3d 393, 396 (1994)). "Where discretion has been vested in the trial court, only a clear abuse of discretion or an application of impermissible legal criteria justifies reversal." Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993). To abuse its discretion, a court must do more than merely exercise its discretion "unwisely." See Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 1007 (1995) ("As in any appeal from a discretionary ruling, our function on review is not to determine if the trial court wisely exercised its discretion, but only to determine if that discretion was abused"). A court only abuses its discretion when it "act[s] arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed[s] the bounds of reason and ignore[s] recognized principles of law" (In re Marriage of Aud, 142 Ill. App. 3d 320, 326 (1986)), so that "no reasonable person would take the view adopted by it" (Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 70 (1998)). Here, we find no abuse of discretion.

On cross-examination, defense counsel elicited that Wright originally, before implicating defendant in the murder, told a detective that he fell asleep in the SUV, apparently suggesting that he slept through the pertinent events of the evening. Defense counsel further elicited that Wright was concerned that he would be charged in the murder and that he only implicated defendant after detectives told him that he had been "identified." While Wright denied it, defense counsel also suggested twice that police told him to "think about helping himself." It was after this cross-examination that the State sought to elicit defendant's statements to Wright to "not trick." Defense counsel immediately objected. The following colloquy then ensued:

"MR. BEUKE [defense counsel]: Judge, I was very careful to stay away from any cross-examination remotely close to him being handcuffed with Rojas and any conversations. I didn't go into any of that.

MS. KAZAGLIS: There was the implication, not just the implication, but the question specifically asked of this witness of what he said originally and why he said it. And there was the implication the only reason he said something was based on what the police told him.

There has been evidence linking in discovery, and counsel is well aware that Mr. Rojas made threats to him, told him to be quiet during the time he was cuffed with him.

He was asked specifically about gang membership, involvement, how he knows Mr. Rojas. It certainly goes to why he would change his story; say one thing to the police and say something different. I think it's proper on cross-examination.

THE COURT: I agree. Even though you didn't specifically question him about the fact that they were cuffed together, you raised the implication in your cross-examination that he didn't tell this story to the police because he was afraid of being charged."

Following further arguments, the trial court made its final ruling on the subject, stating:

"On cross examination you, Mr. Beuke, raised the inference that the reason that Mr. Wright gave what he calls the truthful statement [implicating defendant] is because he was told by the police that he was implicated in this offense and that he was identified. And that is certainly a reasonable inference.

It is just as reasonable an inference, however, that the reason that he initially gave false statements was because of threats from Rojas.

Therefore the State will be permitted to bring that out and you can both argue your respective theories."

The State then elicited from Wright that defendant told him, while in the police car that would take them to a police station, while shackled next to him on a bench at a police station, and while in an adjacent holding cell, not to "trick," meaning not to say anything against him.

We find that the trial court was correct in determining that defendant's intimidating statements were admissible for the purpose of explaining why Wright made a prior statement inconsistent with his later account implicating defendant. As a general rule, when a witness makes a prior inconsistent statement, he should be allowed to explain why he made that statement, and this is properly done on redirect examination. See People v. Hicks, 28 Ill. 2d 457, 462 (1963) ("[t]he rule in such cases is that when proof is introduced that a witness has made prior inconsistent statements, the witness should be afforded an opportunity of explaining these statements and showing the circumstances under which they were made"); M. Graham, Cleary & Graham's Handbook of Illinois Evidence