{ "id": 3564176, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN GOMEZ, Defendant-Appellant", "name_abbreviation": "People v. Gomez", "decision_date": "1984-09-18", "docket_number": "No. 83\u20141326", "first_page": "551", "last_page": "558", "citations": [ { "type": "official", "cite": "127 Ill. App. 3d 551" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 N.E.2d 1202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5533340 ], "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0322-01" ] }, { "cite": "436 N.E.2d 737", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3034774 ], "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0901-01" ] }, { "cite": "392 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 58", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267304 ], "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0058-01" ] }, { "cite": "410 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "year": 1980, "opinion_index": 0 }, { "cite": "433 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 1123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5475801 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/1123-01" ] }, { "cite": "379 N.E.2d 907", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619519 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0949-01" ] }, { "cite": "407 N.E.2d 1121", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3184791 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0278-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "265 N.E.2d 904", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 743", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2825398 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0743-01" ] } ], "analysis": { "cardinality": 766, "char_count": 18064, "ocr_confidence": 0.748, "pagerank": { "raw": 9.321499486201891e-08, "percentile": 0.5132164075975085 }, "sha256": "360e0bc6e0ce7761db5bffe4b14bd87fcf9f8a729886fc155c9acadf61eeb7b0", "simhash": "1:2dd0f4fad92d4e51", "word_count": 2913 }, "last_updated": "2023-07-14T19:14:53.477818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN GOMEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nBen Gomez (defendant), and two codefendants (Jacob Santana and Jesse Alanis) whose cases are not before us, were tried for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9\u20141(a)(1)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A\u20142) in a joint bench trial. Defendant was convicted of murder and found not guilty of armed violence. He was sentenced to 25 years\u2019 imprisonment.\nThe parties stipulated: The victim, 17-year-old Seraf\u00edn Gonzalez, died of multiple gunshot wounds. Pellets from two different caliber guns, four .32-caliber and two .22-caliber, were found at the scene. An additional .32-caliber pellet and two other .22-caliber pellets were also recovered from the body. In the opinion of firearms examiner Richard Fournier, two weapons were used in the shooting.\nAt trial, Rogelio Valasquez testified: On June 11, 1982, at approximately 11:40 p.m., he saw two men wearing hoods run through a gangway adjacent to his home. Soon after, he heard eight or nine gunshots, and then heard the men run back through the gangway.\nChicago police detective John Leonard testified: On July 11, 1982, he interviewed defendant Gomez. After being read his Miranda rights, defendant stated that on the night of the shooting he was with codefendants, Alanis and Santana, in Alanis\u2019 car. Gomez was driving. He stopped the car in an alley. Santana and Alanis got out of the car. They were wearing hooded grey sweatshirts and both were armed. Santana and Alanis walked through a vacant lot while Gomez waited in the car. He then heard several shots, and Alanis and Santana ran back to the car. They told Gomez that they had \u201chit\u201d somebody. Gomez then drove back \u201cto their neighborhood.\u201d\nLeonard further testified that he then interviewed codefendant Santana, who told him: Prior to the shooting, the three codefendants were in Alanis\u2019 car. Alanis was driving. Gomez and Santana were each armed and wearing hooded grey sweatshirts. While Alanis waited in the car, Gomez and Santana walked through a vacant lot. Gomez alone shot the victim. After Gomez and Santana returned to the car, Santana threw his gun out the window.\nFollowing Detective Leonard\u2019s testimony, defendant\u2019s attorney moved for a mistrial, alleging the State had violated discovery. Defendant contended that the various documents tendered by the State to defendant had all indicated that Santana\u2019s custodial statement made to Leonard and others had stated that Gomez was only an unarmed passenger in the defendant\u2019s car, and that Gomez had not been involved in the shooting. Gomez\u2019 attorney argued that Leonard\u2019s trial testimony, in which he stated that Santana\u2019s custodial statement was to the effect that Gomez was the actual shooter, was contradictory to all of the discovery provided defendant, and that the State had violated its duty to advise defense counsel that Leonard was going to testify to this completely different statement by Santana. The court denied the motion for a mistrial.\nAssistant State\u2019s Attorney Edward Pietrucha testified: On July 11, 1982, he and Detectives Leonard and Herigodt interviewed Santana. Santana told them that on the night of the shooting, the three codefendants were together smoking marijuana. Santana said Alanis wanted to \u201cdo a burn\u201d on a member of a rival gang, so the three of them agreed to do so. Alanis went to his home and got a .32-caliber pistol. Santana went to his home and got a .38-caliber pistol. Alanis drove his own car, with Gomez riding in the front seat and Santana in the back. Upon seeing a youth riding a bicycle, Alanis stopped the car. Santana and Alanis, who were wearing grey hooded jackets, exited the car. Alanis alone shot the victim. They returned to the car, and Alanis drove away. Santana threw his gun out of the window.\nDetective Michael Herigodt testified to the same custodial statement by Santana as Assistant State\u2019s Attorney Pietrucha.\nAssistant State\u2019s Attorney Rima Cernius testified to an interview he conducted with codefendant Alanis on July 12, 1982: Alanis there told him that on the night of the shooting Gomez and Santana approached him and told him they each had weapons. Alanis said he saw a bulge in Santana\u2019s pants pocket. Alanis told Santana that he would not lend Santana his car, but that he would drive them. Alanis heard Santana and Gomez discuss \u201cburning somebody\u201d from a different gang. As they drove past a person working on his bicycle, Alanis saw Gomez and Santana looking at that person. Alanis parked the car. Gomez and Santana then left, and Alanis drove off immediately and headed home. Later, Gomez and Santana met Alanis at his home and told him that they \u201chad unloaded\u201d and that Alanis should \u201cbe careful.\u201d\nAt the conclusion of the State\u2019s case, Gomez moved for a directed verdict, which was denied. The court granted Alanis\u2019 motion for a directed verdict, finding that the evidence against Alanis (primarily his own custodial statement) showed only that he had \u201cabandoned somebody\u201d a few blocks away from the subsequent murder and that such was insufficient to hold Alanis accountable for the murder. Santana\u2019s motion for a directed verdict was denied.\nGomez presented no evidence in his own behalf. Santana testified in his own behalf, presenting an alibi and denying having made any incriminating statements to the police. At the conclusion of the trial, the court found Santana and Gomez guilty of murder. Santana was sentenced to 25 years\u2019 imprisonment. Gomez was also sentenced to 25 years, from which he now appeals.\nGomez first contends that the trial court erred when it refused to consider Santana\u2019s custodial statement when weighing the evidence against Gomez. At the outset of the trial, the court had denied Gomez\u2019 motion for severance, and stated that each of the defendants\u2019 custodial statements would \u201conly be used against the individual making the statement unless it is exculpatory.\u201d At the conclusion of the trial, the court reversed itself and stated that in considering the evidence against each defendant, it would consider only the particular defendant\u2019s own custodial statement and not any of the statements of the codefendants. Defendant contends that Santana\u2019s alleged custodial statement, wherein he said that Gomez was an unarmed passenger who remained in the car during the shooting, should have been considered by the court because it was \u201cexculpatory\u201d to Gomez. Defendant contends that Santana\u2019s statement was probative and relevant to the issues and therefore should have been considered by the court as evidence favorable to Gomez.\nIn Illinois, to be held accountable for a crime, the evidence must show that the defendant (1) solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the offense and (2) that defendant\u2019s participation took place before or during the offense and (3) that defendant\u2019s participation was accompanied by the concurrent, specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5\u20142; People v. Tillman (1971), 130 Ill. App. 2d 743, 265 N.E.2d 904.) Here, it was the State\u2019s theory that Gomez, pursuant to his admission to being the driver of the getaway car, was accountable for the shooting.\nGomez contends that Santana\u2019s custodial statement, in which he stated that Gomez was only an unarmed passenger in the car, was exculpatory to Gomez. Gomez posits that Santana\u2019s statement was admissible as to Gomez pursuant to Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.\nArguing that the trial court construed the accountability standard \u201cnarrowly\u201d in granting codefendant Alanis\u2019 motion for a directed verdict, Gomez contends that if the court had considered Santana\u2019s statement with regard to Gomez, the court would be compelled to find Gomez not guilty.\nThe State responds that the court properly refused to consider Santana\u2019s statement in Gomez\u2019 case because: (1) pursuant to Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, a court may not consider the hearsay statement of a codefendant; (2) defendant\u2019s own statement was a confession to the crime of murder under the theory of accountability pursuant to People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121, and therefore Santana\u2019s statement \u201ccould not have helped\u201d Gomez, and (3) Santana\u2019s statement does not \u201cexplicitly exculpate\u201d Gomez.\nIn reply, Gomez contends the State\u2019s arguments are incorrect: (1) Bruton does not apply here, as that case holds only that a court should not admit the statement of a codefendant who does not testify and whose hearsay statement \u201cinculpates\u201d his codefendant. Here, Santana testified, and his hearsay statement \u201cexculpates\u201d Gomez; (2) notwithstanding Gomez\u2019 own alleged custodial statement, either Gomez or Santana was lying, and the trial court had to determine which statement was true and so should have considered both statements in determining guilt or innocence; (3) Santana\u2019s custodial statement is in fact exculpatory to Gomez because the statement made' Gomez a \u201cpassive non-participant\u201d in the shooting, and mere presence does not constitute accountability.\nIn our opinion the present situation is inapposite to Bruton v. United States. That decision, based upon the right to confront adverse witnesses, is inapplicable because Santana did, in fact, testify and thus did not abridge any right of Gomez to confrontation. The rationale of Bruton did not preclude consideration of Santana\u2019s custodial statement as to Gomez.\nWe believe also that Santana\u2019s statement was relevant to the issue of the nature and degree of Gomez\u2019 involvement in the murder and, further, that it met the \u201cindicia of trustworthiness\u201d test set forth in Chambers v. Mississippi. There the United States Supreme Court held that a trial court errs when it excludes hearsay evidence of a third party\u2019s alleged confession to the crime charged to defendant in those situations where it is \u201cobvious\u201d that justice requires a departure from the rules of evidence barring admission of such evidence, and the hearsay evidence passes a four-prong test for trustworthiness. (See People v. Woodruff (1978), 62 Ill. App. 3d 949, 379 N.E.2d 907.) We find that the trial court here should have admitted Santana\u2019s custodial statement in weighing the evidence against Gomez.\nWe do not find, however, that Gomez was prejudiced by this error. To warrant a new trial, a defendant must show that the outcome of his trial would have been different if the improperly excluded testimony had been admitted. (See People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091.) We cannot say that had the trial court considered Santana\u2019s custodial statement (which, at trial, Santana denied making), the court would have believed such statement and disbelieved defendant\u2019s own admission to being the getaway driver, and thereupon found defendant not guilty. A review of the record demonstrates that the trial court found Gomez guilty on the basis of Gomez\u2019 own statement. It has been held in Illinois that a person who knowingly drives a getaway car is accountable for the crimes committed. See People v. Baynes (1980), 87 Ill. App. 3d 1001, 410 N.E.2d 894; People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121.\nDefendant next argues that he is entitled to a new trial because of the State\u2019s alleged discovery violation. As noted previously, defendant contends that the discovery materials provided by the State included summaries of codefendant Santana\u2019s custodial statement which indicated that Santana had said, inter alia, that Gomez was unarmed and remained in the car during the shootings. We have heretofore noted that at trial Detective Leonard testified that Santana, in his custodial statement, charged that Gomez was the person who had fired the shots which killed the victim. Defendant contends that the State violated discovery when it failed to advise defendant that Leonard would testify to a statement which was different than that reflected in the discovery documents.\nThe State contends it \u201csubstantially\u201d complied with discovery. It learned only immediately prior to trial that Leonard was going to testify differently than was indicated in his police reports. The State contends that it had no duty to advise the defendant that one of its witnesses was going to testify in a manner \u201cinconsistent\u201d with that witness\u2019 written report. Even if it technically violated the discovery rules, the State urges that defendant was not prejudiced thereby.\nIn our opinion, the State\u2019s failure to advise defendant that Detective Leonard was going to testify differently than was indicated in his reports was improper under discovery rules in Illinois. The State\u2019s contentions that Leonard\u2019s substantially different testimony was unimportant or not discoverable are without merit:\n\u201cClearly the spirit, if not the express language, of Supreme Court Rules 412 and 415 require a prosecutor to disclose to defense counsel any errors in documents that have been tendered to the defense as soon as the prosecution has such knowledge.\u201d (People v. Burgin (1979), 74 Ill. App. 3d 58, 72, 392 N.E.2d 251.)\nHowever, we do not find that the State\u2019s misconduct requires a new trial because defendant suffered no prejudice thereby. \u201cWhen prejudice is not shown by virtue of inaccurate discovery material, a new trial will not be ordered.\u201d (People v. Pugh (1982), 106 Ill. App. 3d 901, 908, 436 N.E.2d 737.) The record makes clear both that Officer Leonard\u2019s recollection was faulty and that the judge and the parties were aware of his error. In fact, Santana\u2019s custodial statement was that Gomez was an unarmed passenger in the car. The State presented the testimony of Assistant State\u2019s Attorney Pietrucha and Detective Herigodt, both of whom were present at Santana\u2019s interrogation, who agreed that Santana had not named Gomez as the shooter.\nIt is evident that the court was aware of the contradiction between Leonard\u2019s testimony and the written reports. It is also clear that the trial court did not understand Santana\u2019s statement to have named Gomez as the shooter. The State\u2019s theory of the case, and the stated basis for the court\u2019s guilty verdict as to Gomez, was that Gomez admitted that he knowingly drove his codefendants to and from the murder scene. More significantly, the trial court stated that it would not consider Santana\u2019s statement with regard to Gomez, and thus Gomez was not prejudiced by Leonard\u2019s testimony respecting Santana\u2019s custodial statement.\nDefendant\u2019s third argument is that \u201cthe ends of justice were not served\u201d when the trial court directed a verdict in favor of Alanis but convicted defendant based solely on confessions which, defendant asserts, were very similar. Although Gomez does not base his argument on any specific statutory or constitutional theory, he articulates a \u201cdiscomfort\u201d with the seemingly inconsistent verdicts. Defendant asserts:\n\u201cGomez, who was convicted, was no more culpable than Alanis, who was not. *** The similarities in their two statements are much more striking than the differences. Gomez waited in the car for the others to return, whereas Alanis claimed he drove off immediately. This fact, however, is more than offset by the fact that Alanis was the owner of the car, by the fact that he told the others not to shoot out of the car, by the fact that he apparently saw * * * the target, before letting the others out. If Alanis was not guilty, neither was Gomez. If one considers the exculpatory portions of Santana\u2019s statement in reviewing the evidence as to Gomez *** Gomez was less culpable than Alanis. Gomez was merely an unarmed passenger in Alanis\u2019 car and remained there the entire time.\u201d\nIn our opinion, the trial court\u2019s action in granting Alanis a directed verdict does not undermine the guilty verdict as to Gomez since \u201cthe failure to convict a codefendant does not raise a reasonable doubt as to the guilt of the other defendant unless the evidence presented against both parties is identical.\u201d (People v. Hiller (1980), 92 Ill. App. 3d 322, 325, 415 N.E.2d 1202.) Here the evidence, primarily each defendant\u2019s confession, was not identical. Gomez\u2019 argument must therefore be rejected. The evidence here, if believed, is sufficient to prove Gomez guilty beyond a reasonable doubt. While we understand defendant\u2019s chagrin that the trial court, upon granting Alanis\u2019 motion for a directed verdict, denied defendant\u2019s same motion before Gomez\u2019 attorney even had an opportunity to present argument in support of it, such conduct does not alter our determination that the court\u2019s ruling is supported by the evidence.\nIn a final argument, defendant contends generally that Gomez received \u201cunequal\u201d treatment by the trial court because Gomez was indigent and thus could not raise bail nor hire a private attorney, and the result is \u201cdiscrimination based on wealth.\u201d We must reject defendant\u2019s argument; the record demonstrates no such discrimination against defendant. The verdict was supported by the evidence, and defendant has not alleged, nor would the record support, a claim of ineffective assistance of counsel.\nBoth parties agree that the mittimus incorrectly reflects that defendant was convicted of armed violence when, in fact, the court found defendant not guilty of that offense. We direct the trial court to amend the mittimus to provide that defendant was found not guilty of the charge of armed violence.\nFor the reasons herein stated, defendant\u2019s conviction for murder is affirmed.\nAffirmed.\nHARTMAN, RJ., and DOWNING, J., concur.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Mark L. LeFevour, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN GOMEZ, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 83\u20141326\nOpinion filed September 18, 1984.\nJames J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Mark L. LeFevour, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0551-01", "first_page_order": 573, "last_page_order": 580 }