{ "id": 5796095, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RENE MENDEZ, Petitioner-Appellant", "name_abbreviation": "People v. Mendez", "decision_date": "1991-11-05", "docket_number": "No. 1\u201489\u20142620", "first_page": "868", "last_page": "877", "citations": [ { "type": "official", "cite": "221 Ill. App. 3d 868" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "504 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3576130 ], "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0050-01" ] }, { "cite": "119 Ill. 2d 569", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "516 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546394 ], "year": 1988, "pin_cites": [ { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0959-01" ] }, { "cite": "546 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. 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RENE MENDEZ, Petitioner-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nPetitioner, Rene Mendez, was convicted by a jury of murder and attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 \u2014 1(a), 8 \u2014 4(a)) and sentenced to concurrent terms of 35 and 15 years in custody of the Department of Corrections. His conviction was affirmed on January 14, 1986, in an unpublished Rule 23 order. (See People v. Trinidad (1st Dist. 1986), No. 1 \u2014 84\u20142255 (unpublished order under Supreme Court Rule 23).) On July 23, 1987, he filed a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 1 et seq.), which sought an evidentiary hearing. The circuit court dismissed the petition, concluding that there was insufficient evidence to warrant an evidentiary hearing. This appeal followed. Petitioner argues here that (1) his trial and appellate counsel provided ineffective assistance; (2) he was denied a fair trial due to the admission of evidence of his gang affiliation; and (3) he was prejudiced by an improper instruction for attempted murder.\nThe evidence adduced at trial revealed that on October 21, 1983, shortly after 10 p.m., several men were gathered on South Hermitage in Chicago when a car sped around a corner and proceeded toward them. As the car approached, one of the group shouted \u201cSouls.\u201d Shots were fired from inside the car, killing one man and wounding another, and the car drove away.\nFour members of the group testified at trial. Two of them, Daniel Gomez and Mario Garcia, gave eyewitness accounts of the incident, having seen the car and the shooters; they identified petitioner in court and had previously identified him from both a photographic array and a lineup. The other two occurrence witnesses substantially corroborated the testimony regarding the shots fired from the passing car.\nChicago police detective Wayne Drish testified that codefendant Henry Trinidad made a post-arrest statement in which he explained that earlier on October 21, 1983, he and Ricardo Rodriguez (Kiki) were in a car when a man on the street flashed a gang sign at them. The man ultimately shot at the car, wounding Kiki. Chicago police detective David Jarmusz, a gang crimes specialist, testified over objection that two rival gangs, the Latin Souls and the Latin Saints, existed in the area of the shooting. Petitioner and Kiki were both members of the Latin Souls. The individuals in the group fired upon belonged to an organization known as the \u201cD-Boys.\u201d\nThe issue raised in this appeal is whether the circuit court erred in dismissing petitioner\u2019s post-conviction petition without an evidentiary hearing.\nA post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment, the scope of which is limited to issues which have not been, and could not have been, previously adjudicated. (People v. Owens (1989), 129 Ill. 2d 303, 307-08, 544 N.E.2d 276.) To secure an evidentiary hearing, petitioner must make a substantial showing that his constitutional rights were violated and the record or accompanying affidavits support the allegations in the petition. (Owens, 129 Ill. 2d at 308.) All well-pleaded facts in the petition and accompanying affidavits are to be taken as true. (People v. Caballero (1989), 126 Ill. 2d 248, 259, 533 N.E.2d 1089.) Denial of an evidentiary hearing on a post-conviction petition will not be reversed absent an abuse of discretion. People v. Barr (1990), 200 Ill. App. 3d 1077, 1081, 558 N.E.2d 778.\nI\nPetitioner claims that he is entitled to a hearing because he was deprived of his right to effective assistance of counsel during his trial and direct appeal.\nIn a post-conviction proceeding, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived. (People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631.) Petitioner\u2019s arguments regarding trial counsel\u2019s representation were matters of record which could have been raised on direct appeal. These issues, therefore, have been waived. See People v. Jones (1985), 109 Ill. 2d 19, 24, 485 N.E.2d 363.\nPetitioner argues, nevertheless, that his trial counsel\u2019s joint representation of him and codefendant Trinidad was prejudicial in that it constituted a conflict of interest.\nIneffective assistance of counsel is established by showing that counsel\u2019s performance fell below an objective standard of reasonableness, and that but for counsel\u2019s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68.) Joint representation of codefendants is not a per se violation of the right to effective assistance of counsel. (People v. Howard (1988), 166 Ill. App. 3d 328, 332, 519 N.E.2d 982.) Generally, defendants who are jointly indicted are to be tried jointly unless a separate trial is necessary to avoid prejudice to one of them. (People v. Olinger (1986), 112 Ill. 2d 324, 345, 493 N.E.2d 579.) Prejudice occurs in two recognized situations: first, when a hearsay admission of a codefendant implicates the other defendant, and second, when codefendants\u2019 defenses are so antagonistic that a severance is necessary to assure a fair trial. Olinger, 112 Ill. 2d at 345-46; People v. Lee (1981), 87 Ill. 2d 182, 187-88, 429 N.E.2d 461.\nPetitioner at bar has alleged neither of the traditional forms of prejudice. Neither petitioner nor Trinidad testified or accused each other of participation in the crime. Their defenses were each based upon the State\u2019s inability to establish their identification beyond a reasonable doubt. Petitioner makes only general allegations of prejudice and relies upon People v. Horton (1979), 73 Ill. App. 3d 9, 391 N.E.2d 498. Horton did not involve joint representation of codefendants, but held that defendant was denied effective assistance of counsel because his trial counsel had acted previously as an assistant State\u2019s Attorney in defendant\u2019s case. (Horton, 73 Ill. App. 3d at 15.) Nor did United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 E2d 431, hold that joint representation of codefendants is inconsistent with minimum standards of competent representation. That case reversed the district court\u2019s grant of habeas corpus relief, holding in part that the petitioner was aware of his attorney\u2019s possible conflict of interest and knowingly and intelligently waived his right to counsel free from such conflict. Elrod, 716 F.2d at 437-39.\nIn this case, petitioner has not shown that an actual conflict of interest existed at trial. (See Howard, 166 Ill. App. 3d at 333-35.) Further, neither petitioner nor Trinidad ever filed a motion for severance prior to trial. Even if not waived, therefore, petitioner\u2019s argument would fail because his defense counsel was not acting under a conflict of interest.\nPetitioner\u2019s trial counsel was not ineffective for failing to locate and interview alibi witnesses. (See People v. Stepheny (1970), 46 Ill. 2d 153, 158-59, 263 N.E.2d 83.) In such a case, petitioner must attach to his post-conviction petition affidavits showing the potential testimony of those witnesses and explaining its significance. (Barr, 200 Ill. App. 3d at 1080.) Here, petitioner submitted his own affidavit, which attested to the truth of the contents of his petition. He also attached a copy of his amended answer to the State\u2019s motion for discovery, which stated that petitioner was with three named alibi witnesses at the time of the shooting. Without affidavits of the witnesses themselves, however, there is no evidence to support petitioner\u2019s allegations. (See Barr, 200 Ill. App. 3d at 1080; People v. Smith (1985), 136 Ill. App. 3d 300, 302, 483 N.E.2d 655.) Further, petitioner\u2019s counsel indicated that he was unable to locate any of the three witnesses. The conclusional statements in the petition, therefore, do not merit an evidentiary hearing.\nPetitioner also argues that his trial counsel failed to contest evidence of his gang affiliation, object to an improper instruction for attempted murder, and suppress a prior statement made by petitioner. These arguments are meritless. The issues regarding petitioner\u2019s gang affiliation, as will be shown, are res judicata; even if they are not, the evidence adduced was properly admitted. The failure to object to the improper attempted murder instruction does not establish a reasonable probability that the result of petitioner\u2019s trial would have been different. Also, the decision to file a motion to suppress is a matter of trial tactics, which seldom have any bearing on issues of incompetency of counsel. (People v. Purnell (1984), 126 Ill. App. 3d 608, 624, 467 N.E.2d 1160.) Petitioner has not shown that such a motion would have been granted, nor that the outcome would have differed had it been granted. (See Purnell, 126 Ill. App. 3d at 624.) Finally, counsel\u2019s representation was not deficient at sentencing; he argued for the minimum sentence based upon petitioner\u2019s youth and status as a student. Even if we were to consider petitioner\u2019s arguments as not waived, he has failed to demonstrate ineffectiveness based on the totality of his trial counsel\u2019s representation.\nPetitioner also contends that his appellate counsel was ineffective for failing to raise the aforementioned points on direct appeal. This issue is not waived, as the alleged appellate errors were not matters of record; petitioner\u2019s arguments, however, must fail. Not every conceivable trial issue must be raised on appeal, and appellate lawyers often limit their presentations accordingly. (People v. Ruiz (1989), 132 Ill. 2d 1, 18, 547 N.E.2d 170.) It is not incompetence to refrain from raising an issue counsel believes to be without merit, unless his appraisal of the merits is clearly wrong. (People v. Adams (1987), 164 Ill. App. 3d 742, 747, 518 N.E.2d 266, appeal denied (1988), 119 Ill. 2d 560.) In order to support a claim of incompetence of appellate counsel in a post-conviction proceeding, petitioner must establish substantial prejudice which likely affected the outcome of his case. (Adams, 164 Ill. App. 3d at 747.) On direct appeal, counsel argued that the admission of gang evidence was improper, and petitioner and Trinidad were not proved guilty beyond a reasonable doubt. The issues which petitioner argues should have been raised are without merit, and the failure to present them did not result in substantial prejudice. Appellate counsel was not ineffective.\nII\nPetitioner next argues that he was prejudiced by the admission of evidence of his gang affiliation.\nOn direct appeal, it was held that evidence of petitioner\u2019s gang affiliation, although prejudicial, was relevant to establish a motive for the shooting, and, therefore, admissible. (See People v. Trinidad (1st Dist. 1986), No. 1 \u2014 84\u20142255 (unpublished order under Supreme Court Rule 23).) Petitioner now presents several arguments as to why the evidence of his gang involvement was prejudicial. These issues, however, are res judicata, since the admissibility of the gang evidence was decided on direct appeal. Although petitioner did not raise the exact contentions in his prior appeal, he \u201ccannot obtain relief under the Post-Conviction Hearing Act by \u2018rephrasing previously addressed issues in constitutional terms\u2019 in his petition.\u201d People v. Silagy (1987), 116 Ill. 2d 357, 371, 507 N.E.2d 830, quoting People v. Gaines (1984), 105 Ill. 2d 79, 90, 473 N.E.2d 868.\nWere we to consider these arguments, they would fail on their merits. He first claims that the testimony of Detective Jarmusz constituted expert testimony, which was admitted without a proper foundation. Jarmusz identified himself as a \u201cgang crime specialist\u201d with three years of experience in the Gang Crimes South Unit. He testified that he was familiar with the gangs within his district. Two rival gangs existed in the area of the shooting; petitioner was a member of one of them. Jarmusz\u2019s testimony was based upon his personal knowledge of the area in which the drive-by shooting occurred and his experience with various gangs. His testimony was properly admitted. See People v. Buchanan (1991), 211 Ill. App. 3d 305, 318-21, 570 N.E.2d 344; People v. Calderon (1981), 98 Ill. App. 3d 657, 661, 424 N.E.2d 671.\nPetitioner next contends that his statement to Jarmusz regarding his gang affiliation was admitted improperly for want of foundation. Petitioner\u2019s statement, however, was made in March 1983, approximately seven months prior to the shooting, apparently in connection with an unrelated incident. There is no indication in the record that petitioner was in police custody when he made this statement. Petitioner\u2019s argument, therefore, is misplaced, and the statement was properly allowed. See Buchanan, 211 Ill. App. 3d at 320-21.\nPetitioner claims Trinidad\u2019s statement was admitted improperly because it was an extrajudicial statement by a codefendant being used against petitioner and it lacked proper foundation, relying upon People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423. There, testimony was admitted concerning statements made by the nontestifying codefendant. Defendant, whose first name was William, was implicated by a statement which referred to \u201cBill.\u201d The supreme court held admission of that statement improper because it was not redacted. References to defendant were not anonymous and, therefore, served to inculpate defendant. Duncan, 124 Ill. 2d at 407-09.\nPeople v. Harris (1990), 204 Ill. App. 3d 491, 561 N.E.2d 1361, is more analogous to the case at bar. There, defendant contested the admission of an officer\u2019s testimony that a codefendant had made a confession. The testimony was held properly admitted because the text of codefendant\u2019s confession was never presented, the State did not use the confession as evidence against defendant, and the officer never explicitly stated that defendant was implicated by the confession. Defendant\u2019s conviction was based on his own confession and eyewitness testimony. Further, the absence of a limiting instruction was not error because the confession in no way prejudiced defendant. Harris, 204 Ill. App. 3d at 497-98.\nHere, Jarmusz testified that after his arrest, Trinidad stated that prior to the drive-by shooting, he saw a man flash a gang sign and fire upon the car in which he and Kiki were riding. One shot struck Kiki. Trinidad never mentioned petitioner in his statement and did not implicate him in any way. The statement was not a confession of either petitioner\u2019s or Trinidad\u2019s participation in the drive-by shooting. Further, the State did not argue that Trinidad\u2019s statement was direct evidence of petitioner\u2019s guilt. Petitioner was convicted based on eyewitness testimony. The statement was presented in order to establish a motive for the drive-by shooting in this case. Under the State\u2019s theory, petitioner and Trinidad fired upon the group in retaliation for the shooting of their fellow gang member, Kiki. Although this evidence may be prejudicial to petitioner, it is relevant and admissible on that basis. See People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088; People v. Deacon (1985), 130 Ill. App. 3d 280, 291, 473 N.E.2d 1354.\nPetitioner contests evidence of a prior altercation between him and an occurrence witness, Raphael Moreno. Daniel Gomez testified that several weeks prior to the shooting, petitioner had argued with Moreno, and Gomez had seen petitioner flash a gang sign representing \u201cSouls.\u201d Gomez proffered this testimony in response to an inquiry of whether he had ever seen petitioner previous to the incident in question. Although the evidence may have been prejudicial, it was relevant to show petitioner\u2019s gang affiliation, which in turn established his intent or motive. See Buchanan, 211 Ill. App. 3d at 321.\nEven if petitioner was not barred by res judicata, his arguments relating to the admission of gang evidence would not entitle him to an evidentiary hearing.\nIll\nPetitioner claims that the instructions given for attempted murder were improper and deprived him of due process. The relevant instructions defined attempted murder as taking a substantial step toward murder, and murder was defined as causing death with the intent to kill or do great bodily harm.\nAttempted murder requires proof of petitioner\u2019s specific intent to kill the victim. (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28.) An instruction which provides for a conviction of attempted murder based on intent to do great bodily harm is reversible error. (See, e.g., Harris, 72 Ill. 2d at 27-28.) The giving of a defective instruction, however, does not constitute the denial of a constitutional right cognizable under the Post-Conviction Hearing Act. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331.) Petitioner, therefore, may not assert this argument in support of his petition. Further, petitioner failed to object to this instruction at the instruction conference and at trial, and the matter was raised neither in his post-trial motion nor on direct appeal. He has waived consideration of this issue.\nThe waiver rule is relaxed, however, if the interests of justice require; this exception will be invoked to correct grave errors or where the evidence is so close that fundamental fairness requires proper jury instructions. (People v. Stevenson (1990), 198 Ill. App. 3d 376, 382, 555 N.E.2d 1074.) The evidence in the present case was not closely balanced. Petitioner was positively identified by two eyewitnesses who saw him point a gun at a crowd of men and fire several shots. The two witnesses had previously seen petitioner and knew of his gang affiliation. One who fires a gun at or toward another with malice or total disregard for human life may be convicted of attempted murder. (People v. Starks (1989), 190 Ill. App. 3d 503, 510, 546 N.E.2d 71.) Evidence of petitioner\u2019s intent to kill was clear, and any error committed was harmless. (See People v. Page (1987), 163 Ill. App. 3d 959, 972, 516 N.E.2d 1371, appeal denied (1988), 119 Ill. 2d 569; People v. Cloyd (1987), 152 Ill. App. 3d 50, 56, 504 N.E.2d 126.) The waiver rule, therefore, need not be relaxed in this case.\nPetitioner has failed to make a substantial showing that his constitutional rights were violated at trial. The circuit court, therefore, did not abuse its discretion in denying him an evidentiary hearing on his petition.\nAffirmed.\nSCARIANO, P.J., and DiVITO, J., concur.\nPetitioner\u2019s direct appeal, number 1 \u2014 84\u20142317, was consolidated with the direct appeal of codefendant Henry Trinidad.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Daniel J. Stohr, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RENE MENDEZ, Petitioner-Appellant.\nFirst District (2nd Division)\nNo. 1 \u2014 89\u20142620\nOpinion filed November 5, 1991.\nDaniel J. Stohr, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0868-01", "first_page_order": 890, "last_page_order": 899 }