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FIFTH DIVISION
MARCH 31, 2004

No. 1-02-3733

 

Following a bench trial in the circuit court of Cook County, the trial court founddefendant Yohn Zapata guilty of the first degree murder of Omar Brown and sentenced him to 50years in prison. Defendant now appeals his conviction and sentence. Codefendant Alex Negronwas tried simultaneously before a jury and is not a party to this appeal.⁽¹⁾

The record on appeal discloses the following facts. On the evening of June 17, 2001,Omar Brown drove his cousin, Conan Little, and his friend, Raphael Vega, to a Father's Daybarbeque in Cicero. Brown and Vega left the barbeque at approximately 11:15 p.m. to return toBrown's home at 2924 W. Shakespeare; Little, his father, and his father's friend followed in aseparate car. Brown stopped his car in an unlit alley next to his apartment building. Brown, whointended to spend the night at Vega's home, went inside with Little to get clothes, while Little'sfather and Vega remained by Brown's car. When Brown and Little returned, Brown got into thedriver's seat of his car, while Little and Vega got into the rear of the car.

Brown began to pull forward to allow Little's father to get into the front passenger seat,when Brown exchanged words with defendant, who was walking through the alley. Little andVega testified that a man they knew by the name "Coli" began banging on the hood of Brown'scar. Little and Vega later identified defendant as "Coli" in a lineup. Vega also identified him fromphotographs. Little identified defendant as "Coli" in court, but Vega could not.

Defendant testified that he banged on the hood of Brown's car after hearing Little say"fuck you" to him and Brown tried to strike him with the car. Defendant testified that when hebanged on the hood of Brown's car, a van had entered the alley and stopped behind Brown's car. Defendant testified that "Danny and Alex were in the van." Defendant testified that he said,"[N]ow there's [four] of you and I got two friends here, too."

Little and Vega testified that defendant punched out the driver's side window of Brown'scar. Defendant testified that Brown tried to open his car door so as to strike defendant, and thatthe window broke as defendant and Brown struggled against each other for control of the door. Defendant testified that Brown grabbed his hands and caused the car door to cut defendant on theface and hands. Defendant testified that he broke free of Brown's grasp, whereupon Brown gotout of his car and began fighting with defendant. According to defendant, Brown, who wasbigger than defendant, grabbed defendant by the neck so hard he could barely breathe. Defendanttestified that Vega started hitting him, but defendant was separated from Brown when Vegapushed defendant to the ground.

Little testified that he was pulled from the car and saw defendant hit Brown. Littletestified that he was beaten by five or six people, one of whom had him in a headlock against thecar. Vega testified that he saw Little being beaten. According to Vega, "Danny" tried to pullVega out of the car, but he grabbed and pushed Danny instead. Vega testified that he got out ofthe car and pushed defendant off of Brown. Defendant fell to the ground.

Defendant testified that Danny came up to him to help him up from the ground. Defendant testified that he saw Brown coming at him, was scared, took a gun from Danny's handand fired two shots at Brown. Defendant testified that he intended to scare Brown, not kill him. Defendant testified that he did not know whether he had hit Brown. Defendant stated that hehanded the gun back to Danny and ran to a friend's house.

Vega testified that after defendant fell, defendant stood, pulled a gun from his pants andshot twice in the direction of Brown's face. Little testified that he saw defendant shoot Browntwice in the stomach and in the armpit area. Little and Vega testified that Vega attempted to helpBrown into the apartment building, but Brown had to sit and fell backward. Little and Vegatestified that they saw defendant hand the gun to codefendant Alex Negron, a/k/a "Heavy," whothen shot Brown two or three more times.

Little testified that everyone began running. Vega testified that Negron chased him up thestairs of the building. Vega admitted that he originally told the police that defendant had shotBrown on the ground and chased Vega into the building. Vega stated that he did not know theirnames at the time of the shooting and was not given an opportunity to correct his statement to thepolice. The parties stipulated that an assistant State's Attorney would testify that Vega signed astatement that defendant chased him into the building and fired at him approximately three times.

Dr. Adrienne Segovia, a deputy medical examiner with the Cook County medicalexaminer's office, testified that Brown died of multiple gunshot wounds, including a shot to theback of the head, another to the head, one to the chest and one to the left side of his back. Dr.Segovia testified that, in a multiple-gunshot-wound case, the Cook County medical examiner'soffice does not separate the shots to determine which was fatal, but assigns the wounds equalweight. Dr. Segovia testified that three bullets recovered from Brown's body were photographedand turned over to the Chicago police department.

Chicago police Detective Tracy Fanning testified that, shortly after midnight on June 18,2001, she was assigned to investigate the shooting. Detectives Derrick Johnson and ArthurYoung were also present at the crime scene. Detective Fanning testified that after conductingwitness interviews and receiving a photograph of defendant brought to the scene by other policeofficers, she began searching for defendant.

Detective Fanning testified that she first went to an address on California Street, then to atwo-flat on the 2900 block of 21st Street. After receiving information, Detective Fanning wentup to the second floor, where she saw defendant through an open door. Detective Fanningidentified defendant in court.

Detective Young testified that codefendant was found at the Stars Motel at 6100 NorthLincoln between 4 and 5 a.m. on June 18, 2001. The police recovered a gun and five shell casingsfrom the motel room. The parties stipulated that forensic scientist John Flanskamp would testifythat the bullets recovered from the postmortem examination of Brown and the shell casingsrecovered at the Stars Motel were all fired from the gun recovered at the Stars Motel.

Defendant testified to his account of the shooting. Defendant testified that he had refusedto answer the police questioning. Defendant denied telling Detective Fanning that, on the night inquestion, he had gone with his girlfriend and their daughter to Hollywood Beach to celebrate theirdaughter's birthday, returning to the girlfriend's home at 2648 West 21st Street at 11 p.m., wherethey remained for the rest of the night. Defendant testified that he did go to the beach with themand left at approximately 11 p.m., but his girlfriend left him a few blocks from his house when shestopped to get gasoline at Fullerton and California.

In rebuttal, Detective Fanning testified that defendant had told the police that he had spentthe night at his girlfriend's home on 21st Street. Detective Fanning testified that she then went to21st Street to speak with defendant's girlfriend, who was ultimately brought to the police stationto continue the investigation. Detective Fanning acknowledged that the arrest report in this casestated that defendant refused statements, oral and written. Detective Fanning testified that thenote in the arrest report meant that defendant refused to make a statement to a State's Attorney.

Following closing argument, the trial court found defendant guilty of the first degreemurder. The trial court later denied defendant's posttrial motion. The trial court sentenceddefendant to 50 years in prison, 20 of which were imposed under a statute adding that term wherethe person personally discharged a firearm. Defendant now appeals.

Defendant initially contends that the State failed to disprove beyond a reasonable doubt hisclaim of self-defense. Self-defense is an affirmative defense and, once raised, the State has theburden of proving beyond a reasonable doubt that defendant did not act in self-defense. People v.Jeffries, 164 Ill. 2d 104, 127, 646 N.E.2d 587, 597 (1995). The elements of self-defense are that: (1) unlawful force was threatened against a person; (2) the person threatened was not theaggressor; (3) the danger of harm was imminent; and (4) the use of force was necessary. Peoplev. Dillard, 319 Ill. App. 3d 102, 106, 745 N.E.2d 185, 188 (2001). The standard of review iswhether, taking all of the evidence in the light most favorable to the State, any rational trier offact could have found beyond a reasonable doubt that defendant was not acting in self-defense. Dillard, 319 Ill. App. 3d at 106-07, 745 N.E.2d at 189.

However, defendant's attack focuses on the trial court's determination of the credibility ofthe witnesses. Defendant notes that the trial court found that defendant was not a crediblewitness. In a bench trial, it is the province of the trial court to determine the credibility andweight of the testimony, to resolve the inconsistencies and conflicts therein and to render itsdecision accordingly. People v. Berland, 74 Ill. 2d 286, 305-06, 385 N.E.2d 649, 658 (1978). Defendant nevertheless contends that the trial court's determination of credibility was based onunreasonable inferences from the record, ignoring evidence that corroborated his testimony.

Defendant specifically takes issue with the trial court's inference that he must have made astatement to Detective Fanning, contending that there were "other, equally plausible explanations"as to how Detective Fanning could have learned whether defendant spent the day with hisgirlfriend. However, where more than one equally plausible interpretation can be made from thefacts, the credibility determination of the trial court will be sustained. People v. Chapman, 22 Ill.2d 521, 525, 177 N.E.2d 143, 145 (1961); Mache v. Mache, 218 Ill. App. 3d 1069, 1075, 578N.E.2d 1253, 1257 (1991). This court will not overturn the trier of fact on questions involvingthe weight or credibility of testimony unless the evidence is "so palpably contrary to the verdict orso unreasonable, improbable or unsatisfactory as to create a reasonable doubt of [the defendant's]guilt." People v. Abdullah, 220 Ill. App. 3d 687, 693, 581 N.E.2d 67, 72 (1991).

In this case, Detective Fanning first went to an address on California Street, then to a two-flat on the 2900 block of 21st Street, where she found defendant. Detective Fanning testified thatshe returned to the girlfriend's home after speaking to defendant. The logical inference to bedrawn is that Detective Fanning was seeking evidence she did not obtain earlier at either address,in response to the police questioning of defendant. Defendant claims that Detective Fanningmight have gotten information from codefendant or others, but this claim is speculation withouttestimonial support in the record. Moreover, the transcript shows that this issue was not the onlyone the trial court considered in assessing the credibility of the witnesses.

Defendant notes that the arrest report stated that defendant refused to give a statement,but Detective Fanning testified that this meant that defendant refused to make a statement to aState's Attorney. Defendant attack's Vega's credibility based on his prior signed statement thathad the roles of the codefendant and defendant reversed, but Vega testified that he did not knowtheir names when he gave that statement and was not given an opportunity to correct it.

In short, while there were conflicts in the evidence, defendant has failed to show that theevidence was so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactoryas to create a reasonable doubt of his guilt. Thus, there is no reason to overturn the trial court'sdeterminations of witness credibility.

Defendant claims that the State failed to prove beyond a reasonable doubt that defendantwas accountable for codefendant Negron's acts. Defendant and codefendant were jointly indicted. Defendant points to nothing in the record suggesting he was convicted on the theory ofaccountability. Moreover, the justifiable-use-of-force defenses presuppose that, when a defendantinvokes them, the accused committed the act. People v. Diaz, 101 Ill. App. 3d 903, 915, 428N.E.2d 953, 962 (1981). Defendant cannot simultaneously assert that he did not commit theoffense and that he was justified in committing it.

Defendant argues in the alternative that he should have been found guilty of second degreemurder. However, the transcript shows that the trial court completely rejected the notion that thiswas a case of self-defense, finding that defendant was the aggressor, which negates the possibilityof reasonable and unreasonable self-defense. See People v. Morgan, 187 Ill. 2d 500, 535, 719N.E.2d 681, 701 (1999).

In sum, defendant has failed to show that the trial court erred in finding defendant guilty offirst degree murder.

Defendant contends that he was denied a fair sentencing hearing where the trial judgeimproperly relied on her own personal disdain for gang violence, where there was no evidencethat the murder was related to gang activity. The State responds that defendant waived the issueby failing to raise it in the trial court. However, the State also notes that the waiver rule is lessrigidly applied when the basis for the objection is the trial judge's conduct. People v. Nevitt, 135Ill. 2d 423, 455, 553 N.E.2d 368, 381 (1990); People v. Brown, 200 Ill. App. 3d 566, 575, 558N.E.2d 309, 314 (1990). The waiver rule is relaxed when the conduct of the judge is at issue dueto "'the fundamental importance of a fair trial and the practical difficulties involved in objecting tothe conduct of the trial judge.'" Brown, 200 Ill. App. 3d at 575, 558 N.E.2d at 314, quotingPeople v. Heidorn, 114 Ill. App. 3d 933, 936, 449 N.E.2d 568, 572 (1983). Thus, this courtturns to address the merits of the issue.

Where the sentencing judge relies on improper factors, including prejudice or speculation, the sentence should be vacated and the cause remanded for resentencing. People v. Dempsey,242 Ill. App. 3d 568, 597, 610 N.E.2d 208, 227 (1993). It is improper for a trial court toconsider that a shooting was gang related where there is no evidence that the shooting was gangrelated. People v. Carter, 344 Ill. App. 3d 663, ___ N.E.2d ___ (2003); People v. Gonzalez, 238Ill. App. 3d 303, 333, 606 N.E.2d 304, 325 (1992); People v. Rosa, 206 Ill. App. 3d 1074, 1084-85, 565 N.E.2d 221, 228 (1990). For example, in Gonzalez, the sentencing court stated:

"'THE COURT: The Court has considered the presentencereport and the statement of counsel and the evidence heard on thetrial of this case. It was the victim here who knew that thisdefendant was the person perhaps among others who shot, and shothim repeatedly.

And this was typically a Chicago street gang murderousassault. It was typically mindless, stupid, cowardly, callous, and forno other reason but this mindless street gang conflict which is--there has been nothing more stupid or cowardly ever conceived ofthan this continuous street gang rivalry in this city. But there isnothing, it was a cold blooded shooting and murder.

There is no mitigation of any kind, none conceivable. Andthe law in its provisions, sentencing provisions is more thangenerous in setting the maximum term of 40 years and then allowing for half of that time to become good time. Many believe it to beinadequate, but the Court can see no reason to impose any othersentence.'" Gonzalez, 238 Ill. App. 3d at 333, 606 N.E.2d at 325.

The Gonzalez court vacated the sentence and remanded to the trial court for resentencing, holdingthat the trial court failed to consider the requisite statutory factors. See Rosa, 206 Ill. App. 3d at1084-85, 565 N.E.2d at 228 (connected case involving even more egregious comments); Peoplev. Smith, 178 Ill. App. 3d 976, 985, 533 N.E.2d 1169, 1175 (1989) (sentencing judge believedthe offense was gang related, without any evidence that defendant had gang-related motives). Seealso People v. Johnson, 227 Ill. App. 3d 800, 817, 592 N.E.2d 345, 357 (1992) (sentencing courtconsidered crime to be drug related without evidence of such in the record).

In this case, the trial judge stated the following in sentencing defendant:

"THE COURT: Based on the matters before me, thefactors I have heard in aggravation and mitigation, the pre-sentenceinvestigation report, the victim impact statement, and the testimonyof defendant's mother, as I indicated in Mr. Negron's sentencing,the fact that gang members wield guns and shoot them willy-nillyfor no apparent purpose is just so senseless. Both families sit heretoday losing a relative."

As the trial judge referred to her comments in sentencing codefendant Negron, it is noted that shemade the following comments in sentencing Negron, who had argued in part that his lack of afather and poverty were mitigating factors in his case:

"THE COURT: Okay. Based on the matters before me,the factors I heard and considered in aggravation and mitigation,the pre-sentence investigation report, as well as the victim impactstatement from Mr. Brown's mother in this case, the senselessnature of this case just really typifies the senselessness of gangviolence in this city. We have family members of the victim and thedefendant on both sides all losing sons, relatives and for what?

There are many people in the city who don't have fathers and live inpoverty and that is not an excuse for gang activity and murder."

The State admits in its brief that "[e]vidence of defendant's gang involvement was neverintroduced at trial," but maintains that the comments were proper because the presentence reportcontains the statement that Zapata became a member of the Latin Lovers street gang at age 19,that his nickname was "Columbia," and that he quit the gang in 1999. The State fails to explainhow defendant's past gang membership is evidence that this murder was gang related.

The State claims this case is similar to People v. Dizon, 297 Ill. App. 3d 880, 891, 697N.E.2d 780, 787 (1998), where the sentencing judge noted that the case "clearly demonstratedthat it was another illustration of senseless gang violence." In Dizon, the State introducedevidence that:

"Immediately prior to the fight, however, defendant, a member of aFilipino street gang, yelled 'RSG' and 'Dragon Killer' at the victim. These were references to a Korean gang. Thus, the evidence ofgang affiliation was relevant to explain the motive for the murder,which was gang rivalry. The additional evidence regarding thecigarette burn marks on the hands of the defense witnesses was alsorelevant in that it illustrated the common bond between thewitnesses and the defendant, who were all members of the Filipinostreet gang 'Red Scorpions,' and was relevant to show the defensewitnesses' motive to testify as they did." Dizon, 297 Ill. App. 3d at889-890, 697 N.E.2d at 787.

The State also compares this case to People v. Banks, 260 Ill. App. 3d 464, 632 N.E.2d257 (1994). Banks suggests that the sentencing court may consider a defendant's gangmembership when considering his general moral character, his mentality, his habits, his socialenvironments, his abnormal tendencies, his age, his natural inclination or aversion to commit crimeand the stimuli which motivated his conduct. See Banks, 260 Ill. App. 3d at 474, 632 N.E.2d at265. However, the presentencing report in Banks showed that the defendant was a current gangmember; the report here stated that defendant had quit a gang in 1999. In both Banks and Dizon,the record contained evidence of gang rivalry; there is none here. Furthermore, in Banks, thiscourt examined the transcript and concluded that "the tone of the court's comments do[es] notsuggest that the rival gang situation was used in aggravation at all but instead indicates a criticismof the State's witnesses and a proposed rationale for the actions of defendant." Banks, 260 Ill.App. 3d at 474, 632 N.E.2d at 265.

In this case, the State admits that there was no evidence introduced at trial that thismurder was gang related. A reviewing court should not focus on a few words or statements ofthe trial court, but should make its decision based on the entire record. People v. Fetter, 227 Ill.App. 3d 1003, 1010, 591 N.E.2d 474, 478 (1992). In this case, the transcript shows that the trialjudge's distaste for gang violence was the dominant factor in the determination of defendant'ssentence. A distaste or disgust for gang violence is entirely understandable, but it is an impropersentencing factor where there is no evidence that the murder was gang-related.

In sum, the trial court erred. Defendant's sentence shall be vacated and the case will beremanded for resentencing. Accordingly, this court need not consider defendant's other claim thatthe 30-year base sentence was excessive.

Finally, defendant contends that the statute mandating the addition of 20 years to hissentence, section 5--8--1(a)(1)(d)(ii) of the Uniform Code of Corrections (730 ILCS 5/5--8--1(a)(1)(d)(ii) (West 2000)), is unconstitutional. A statute is presumed constitutional; the partychallenging the statute bears the burden of demonstrating its invalidity. People v. Moss, 206 Ill.2d 503, 519-20, 795 N.E.2d 208, 219 (2003). This court has a duty to construe a statute in amanner that upholds its validity and constitutionality if it can reasonably be done. Moss, 206 Ill.2d at 520, 795 N.E.2d at 219. The question of whether a statute is constitutional is subject to denovo review. Moss, 206 Ill. 2d at 520, 795 N.E.2d at 219.

Public Act 91404 (Pub. Act 91--404, eff. January 1, 2000) amended the penalty portion ofvarious criminal offenses, including first degree murder, which the legislature deemed "the mostserious offenses," by adding what has been referred to as the "15/20/25 to life" mandatorysentence enhancement provisions when the designated offenses involve the use of a firearm. SeeMoss, 206 Ill. 2d at 514, 795 N.E.2d at 215-16, quoting 91 Ill. Gen. Assem., House Proceeding,May 13, 1999, at 67-68 (statements of Representative Turner). The relevant provision providesthat:

"(a) Except as otherwise provided in the statute defining the offense, asentence of imprisonment for a felony shall be a determinate sentence set by thecourt under this Section, according to the following limitations:

(1) for first degree murder

(a) a term shall not be less than 20 years and notmore than 60 years, or

(d)(i) if the person committed the offense whilearmed with a firearm, 15 years shall be added to theterm of imprisonment imposed by the court;

(ii) if, during the commission of theoffense, the person personally discharged afirearm, 20 years shall be added to the termof imprisonment imposed by the court;

(iii) if, during the commission of theoffense, the person personally discharged afirearm that proximately caused great bodilyharm, permanent disability, permanentdisfigurement, or death to another person, 25years or up to a term of natural life shall beadded to the term of imprisonment imposedby the court." 730 ILCS 5/5-8-1(a) (1) (d)(i), (a) (1) (d) (ii), (a) (1) (d) (iii) (West2000).

Defendant argues that the statute violates the proportionate penalties clause of the IllinoisConstitution and due process of law. This court addresses each argument in turn.

The proportionate penalties clause of the Illinois Constitution provides that "all penaltiesshall be determined both according to the seriousness of the offense and with the objective ofrestoring the offender to useful citizenship." Ill. Const. 1970, art. I,