{ "id": 3554736, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GONZALO H. MOYA, Defendant-Appellant", "name_abbreviation": "People v. Moya", "decision_date": "1988-09-07", "docket_number": "No. 85-3453", "first_page": "22", "last_page": "25", "citations": [ { "type": "official", "cite": "175 Ill. App. 3d 22" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "482 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1048" } ], "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564189 ], "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0205-01" ] }, { "cite": "495 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "1373" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536469 ], "year": 1985, "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0835-01" ] }, { "cite": "523 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "142" } ], "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514683 ], "weight": 2, "pin_cites": [ { "page": "976" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0968-01" ] }, { "cite": "358 Ill. 518", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5280572 ], "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill/358/0518-01" ] }, { "cite": "518 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193621 ], "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0119-01" ] }, { "cite": "492 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 1014", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3451124 ], "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/1014-01" ] }, { "cite": "447 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106990 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0514-01" ] } ], "analysis": { "cardinality": 452, "char_count": 8077, "ocr_confidence": 0.744, "pagerank": { "raw": 1.8940817226115086e-07, "percentile": 0.7293593178598443 }, "sha256": "810da39d4b7632587209693ba9ee67b423dc060b2ea8eef059c87bc0b0da298c", "simhash": "1:14239018fe40b4a7", "word_count": 1327 }, "last_updated": "2023-07-14T17:24:13.630237+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. GONZALO H. MOYA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Gonzalo Moya, was convicted of aggravated battery and attempted murder and sentenced to 19V2 years in the Illinois Department of Corrections. On appeal, defendant argues that (1) the prosecutor made improper and prejudicial remarks regarding the absence of defendant\u2019s alibi witnesses from defendant\u2019s trial; (2) the court erroneously instructed the jury, calling its attention to another shooting in which defendant was not identified as being involved; (3) the court erroneously prevented defendant from introducing evidence corroborative of his alibi defense; (4) evidence concerning alleged gang affiliations of defendant and certain defense witnesses was erroneously introduced; and (5) to the extent that an improper record exists, defendant was deprived of effective assistance of counsel at trial. We reverse and remand for a new trial.\nOn August 8, 1984, a man with a rifle fired shots at a group of young men. The man with the rifle was riding in the backseat of a car that was later identified as a stolen vehicle. Defendant was identified by several prosecution witnesses as the driver of that car.\nDefendant was arrested and charged with aggravated battery and attempted murder of Marco Nieves and Jose Batres. At trial, defendant introduced the testimony of several alibi witnesses who testified that defendant was in their company on a shopping trip at the time of the shooting on August 8. Defendant also attempted to introduce evidence as to why his mother, also an alibi witness, was not present in court. However, the trial court precluded the introduction of any such evidence as irrelevant hearsay.\nIn closing argument, the prosecutor commented on the absence of defendant\u2019s mother from the trial of her son, surmising that defendant\u2019s mother \u201cwouldn\u2019t get on the stand and lie for him.\u201d In reference to defendant\u2019s mother and another alibi witness who did not appear in court, the prosecutor stated that \u201c[tjhose people couldn\u2019t get on the witness stand and lie for this kid.\u201d\nAt the close of evidence the trial court, among other instructions, instructed the jury as to another shooting in which defendant was an alleged suspect but was never identified as having a connection to that crime. Although there was a directed finding of not guilty as to the counts pertaining to Nieves, the jury returned a verdict of guilty of aggravated battery and attempted murder as to the counts pertaining to Batres. Defendant\u2019s motion for a new trial was denied by the trial court and this appeal followed.\nDefendant first contends that the prosecutor\u2019s comments regarding the whereabouts of his mother and another alibi witness were improper, prejudicial and therefore reversible error. We agree.\nA prosecutor\u2019s comments cannot be labelled improper if those comments are based upon facts in the record or reasonable inferences drawn from those facts. (People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) Thus, a prosecutor has wide latitude to comment on the evidence presented, the evils of the crime committed and the results that would occur if a defendant were released. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 1025, 492 N.E.2d 600, 606.) However, it is improper for a prosecutor to express his own opinion of a defendant\u2019s guilt or to argue facts which are not based upon the evidence. (People v. Johnson (1987), 119 Ill. 2d 119, 139, 518 N.E.2d 100, 111.) Moreover, a prosecutor\u2019s argument must be conducted \"within the bounds of proper courtroom decorum to insure a defendant\u2019s entitlement to a fair trial. Therefore, any remarks that would deprive a defendant of a fair trial cannot be permitted if this rule is to be observed. This is true regardless of a defendant\u2019s guilt or innocence. People v. Savage (1934), 358 Ill. 518, 522.\nIn the instant case, the prosecutor argued that defendant\u2019s mother was not in court because she did not want to lie on his behalf. The prosecutor made these comments well aware of the fact that defendant had been precluded from introducing information as to his mother\u2019s whereabouts and that defendant had no means of rebutting this comment within the evidence previously adduced at trial. The State had no means of knowing the subjective reasons as to why defendant's mother as well as any other witness did not appear in court. There was no testimony of record from those witnesses nor any evidence of record as to why they were not in court. Therefore, by no stretch of the imagination can it be said that the prosecutor\u2019s comments were a commentary on the evidence presented or reasonable inferences drawn therefrom.\nIn the State\u2019s closing argument the prosecutor stated:\n\u201c[S]ome people can\u2019t get on the witness stand and lie and won\u2019t get on the witness stand and lie. Doesn\u2019t it \u2014 isn\u2019t that a coincidence? Who didn\u2019t you hear from? Did you hear from Julio Gonzales? Did you hear from Mrs. Moya? Those people, according to his brother were with him. Did they get on the witness stand? *** Those people couldn\u2019t get on the witness stand and lie for this kid. They wouldn\u2019t get on the stand and lie for him ***.\u201d\nAs we stated in the recent case of People v. Nightengale (1988), 168 Ill. App. 3d 968, 523 N.E.2d 136, when the disregard for bounds of proper argument is clearly flagrant and purposeful, the only logical conclusion is that the comments are made for the sole purpose of prejudicing the defendant. Once again, we reiterate the principle that such behavior has not and will not be tolerated by our courts. (Nightengale, 168 Ill. App. 3d at 976, 523 N.E.2d at 142.) Consequently, we find that defendant is entitled to a new trial.\nDefendant next argues that the trial court erred in instructing the jury as to defendant\u2019s alleged involvement in another shooting offense when defendant was never identified as having any connection to that offense. We agree.\nThe sole function of jury instructions is to convey the correct principles of law applicable to the evidence submitted to the jury. Jury instructions enable the jury to apply the proper legal principles to the facts and arrive at a correct conclusion according to the law and the evidence. (People v. Jones (1986), 145 Ill. App. 3d 835, 838, 495 N.E.2d 1371, 1373.) Thus a trial court should refuse a tendered jury instruction when there is no evidence to support that proffered instruction. People v. Mitchell (1985), 136 Ill. App. 3d 205, 208, 482 N.E.2d 1046,1048.\nHere, the instruction reads in part:\n\u201cEvidence has been received that the Defendant has been involved in an offense other than charged in the information. This evidence has been received solely on the issue of the Defendant\u2019s identification. This evidence may be considered by you only for the limited purpose for which it was received.\u201d\nHowever, the evidence received at trial indicated that defendant was never identified as being involved in the offense referred to in the jury instruction. The State argues that the purpose of this instruction was solely for the \u201cidentification process of the defendant\u201d and was so limited. We cannot accept this position because such an instruction is highly prejudicial. Moreover, it is difficult to segregate any suspected actual involvement in the offense from the limited purpose of identification. Accordingly, the trial court erred in giving this instruction to the jury.\nIn light of our decision on the previous issues, we need not address the remaining trial errors raised on appeal by defendant. Accordingly, the judgment of the trial court is reversed and this cause is remanded for a new trial.\nReversed and remanded.\nWHITE, P.J., and FREEMAN, J., concur.", "type": "majority", "author": "JUSTICE RIZZI" } ], "attorneys": [ "Julius Lucius Echeles, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GONZALO H. MOYA, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 85\u20143453\nOpinion filed September 7, 1988.\nJulius Lucius Echeles, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0022-01", "first_page_order": 44, "last_page_order": 47 }