{ "id": 5110312, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ESTRADA, Defendant-Appellant", "name_abbreviation": "People v. Estrada", "decision_date": "1993-02-11", "docket_number": "No. 1-91-1529", "first_page": "177", "last_page": "185", "citations": [ { "type": "official", "cite": "243 Ill. App. 3d 177" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031235 ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0077-01" ] }, { "cite": "596 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202055 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0054-01" ] }, { "cite": "563 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "138 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576671 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/138/0434-01" ] }, { "cite": "584 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5264479 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0614-01" ] } ], "analysis": { "cardinality": 866, "char_count": 20432, "ocr_confidence": 0.776, "pagerank": { "raw": 8.459587877232892e-08, "percentile": 0.4851035716754143 }, "sha256": "991bf7b04be11b4f820ec895c1bffbdcf6464a0dfee2d3d37bdc14eb858dc6ef", "simhash": "1:8bfdc0a47368dfb9", "word_count": 3420 }, "last_updated": "2023-07-14T20:55:01.285518+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. DAVID ESTRADA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nIn a bench trial, defendant David Estrada (Estrada) was found guilty of first-degree murder on a theory of accountability and was sentenced to 20 years\u2019 imprisonment. He appeals his conviction principally on the following theories: (1) that the trial court misconstrued the law of accountability, (2) that Estrada was not found guilty beyond a reasonable doubt, and (3) that the trial court improperly considered the statement of a codefendant whose trial had been severed from Estrada\u2019s trial. We note that Estrada has been free on bond pending this appeal.\nThe facts are as follows.\nIn February 1991 codefendants Gerardo Degollado (Degollado), Juan Portillo (Portillo) and Estrada came before the trial court on charges of murder in the first degree in conjunction with the shooting death of Jesus Sanchez on the evening of November 17, 1989. Each of the defendants waived his right to a jury trial and was tried by the judge in simultaneous but severed trials.\nAt trial Mario Martinez Alvarado (Martinez), who spoke only Spanish, testified through an interpreter. According to his testimony, on November 17, 1989, he lived in the vicinity of Karlov and 24th Place in the City of Chicago. At about 7 p.m. he met \u201cFlacko,!\u2019 a friend whom he had known for about three months. They planned to go to a party that was to be held near 25th and Trumbull. \u201cFlacko\u201d was identified in court as Degollado.\nSometime later that evening, as Martinez and Degollado were on the street near 26th and Trumbull, they saw \u201cDagger,\u201d whom Martinez had met only once before. Dagger was driving a blue Buick, four-door car. Martinez and Degollado got into the car and began to ride around the neighborhood. Dagger was identified in court as Portillo.\nPortillo drove the car, Degollado sat in the front passenger-side seat and Martinez sat in the back, behind the driver. After about V-k to 2 hours of driving around, they met \u201cTiny,\u201d who was identified as Estrada. Estrada spoke with Portillo and then got into Portillo\u2019s vehicle and began to ride around with them. At some point a black vehicle pulled up alongside the Buick and the occupants of that car had a conversation with Estrada.\nAccording to Martinez, as they rode around the area Portillo pulled out a gun. Martinez did not see where the gun had been or how Portillo had obtained the gun. Portillo aimed the gun at a person who was standing near a bus stop on 26th Street, but did not fire the gun at this time.\nMartinez further testified that about five minutes later, Portillo pulled up in front of a building at Karlov and 24th Place, where a Hispanic male was standing. Portillo and Estrada began to shout at the person \u201csomething about gangs.\u201d Portillo then reached across Degollado, aimed the gun out the passenger-side window, and fired the gun twice. The Hispanic male bent over and ran. Estrada exited the car carrying a tire iron and proceeded to smash a window of the house where the Hispanic person had been standing. Estrada then got back into the car and they drove away.\nMartinez stated that after the incident he and Degollado both asked to be taken home immediately. Portillo then drove him to his home.\nChicago police officer Frank Castro testified that a short time later, around midnight on the evening of November 17, 1989, he arrived at a residence located in the 4100 block of West 24th Place in Chicago in response to a radio broadcast indicating that a man had been shot. When he arrived at the scene paramedics were already present and removing Jesus Sanchez, the victim of gunshot wounds, from the premises. Castro secured the front of the residence where the shooting allegedly occurred and spoke with several witnesses at the scene. About 20 minutes later he left the area to go to the hospital.\nAnother Chicago police officer, J. Veraveic, testified that at about 2:15 a.m. on November 18, 1989, he was in the area of 2200 South Ridgeway when he was flagged down by a man. Based upon a conversation with this man, Veraveic called for backup and then took off after a person who could be seen running from the area. Chicago police officer Ramos appeared on the scene in response to the call. Veraveic caught the man who was running and arrested him. This man was later identified as Estrada.\nOfficer Ramos testified that he received a radio broadcast indicating that there was an aggravated assault with a gun in progress at 2200 South Ridgeway. He immediately arrived at the scene and spoke with a man, Ronald Jenkins, identified as the complainant. He saw Officer Veraveic apprehend Estrada and he (Ramos) recovered a .22 semi-automatic pistol approximately 75 feet from where Estrada was arrested. Ramos made an in-court identification of the gun that was recovered and testified that the gun had not contained any bullets when it was recovered.\nThe next evidence adduced at trial concerned statements given by the defendants. Portillo and Degollado had each given signed written statements to the police which were admitted into evidence. However, these statements were only to be considered in regard to their own cases since the trials were severed. Detective Robert Browne of the Chicago police testified regarding the oral statements made by Estrada. Browne stated that he had interviewed Estrada at about 4:30 p.m. on November 18, 1989, while in the presence of Detective Vucko. At that time Estrada gave a statement in which he indicated that on the evening of November 17, 1989, he had been driving around with his cousin \u201cKado,\u201d Danny Cantu and Manuel Banda. He saw Jesus Perez and Thomas Tinius in Perez\u2019s car. Perez had been in an accident and his bumper was entangled with another vehicle. Estrada took a jack out of Perez\u2019s car and freed Perez\u2019s bumper.\nPortillo also pulled up to the scene in his car and Estrada got into the back passenger seat of Portillo\u2019s car. Cantu and Banda got into Perez\u2019s car. Degollado and a Spanish-speaking male (Martinez) were already in Portillo\u2019s car. Estrada stated that he knew that Degollado had a .22 semi-automatic gun.\nAs Estrada drove around in Portillo\u2019s car, he saw Perez again. Perez pulled his car up next to Portillo\u2019s car and they had a conversation. Both cars then drove to 24th and Karlov, where they saw two Hispanic males standing. Degollado reached out the window and \u201crepresented,\u201d i.e., made gang symbols for the Latin Kings. The two individuals on the street represented as Two-Sixers. Estrada then began to exit Portillo\u2019s car with the tire iron. As he exited the car he heard two shots. Estrada chased after one of the individuals, who ran up the stairs and into the vestibule. Estrada gave up the chase and broke a first-floor window of the building where the one individual entered. Estrada got back in Portillo\u2019s car and they drove off.\nDetective Browne further testified that when questioning Estrada on the following day, in the presence of Assistant State\u2019s Attorney Ryan, Estrada admitted that the gun that had been recovered at the time of his arrest was one he had taken from Portillo\u2019s car and the same one that had been used in the shooting at 24th and Karlov. However, Estrada stated that he had been unaware that anyone had actually been shot on the evening of November 17. Estrada also indicated that the gun had been hidden in Portillo\u2019s car inside the glove-box, behind the clock, and that Degollado had passed the gun to Portillo.\nIt was stipulated that Fournier, a crime lab technician, had run ballistics tests on the gun recovered from Estrada. He would testify that the tests, although not conclusive, indicated that the markings from the gun compared favorably with the markings' on the bullet that was recovered from the victim, Jesus Sanchez.\nNext it was stipulated that Dr. Kalelkar, a forensic pathologist, if called would testify that an autopsy was performed on Jesus Sanchez, a 16-year-old male. The autopsy revealed that Sanchez had died of a single gunshot wound to the upper abdomen which perforated the diaphragm, the right lower liver, the abdominal aorta and the left renal vein.\nAt the close of the State\u2019s evidence, each of the defendants moved for a directed verdict. The court granted the motion only as to Degollado. The court found that even if Degollado had passed the gun to Portillo, this had taken place several minutes before they reached the corner of 24th and Karlov. Degollado\u2019s only overt act at the time of the shooting was \u201csigning\u201d or \u201crepresenting\u201d with gang symbols. Thus the court found no nexus between Degollado\u2019s action of passing the gun and the shooting.\nThe trial court denied the motions for directed verdict as to Portillo and Estrada. After his motion for directed verdict was denied, Portillo rested without presenting any further evidence. The trial court then found Portillo guilty of murder in the first degree. Estrada, however, proceeded to present further evidence.\nDefendant Estrada first presented evidence by way of stipulation. It was stipulated that Fournier, the crime lab technician, if called would testify that the .22 semi-automatic gun that was recovered at the time of Estrada\u2019s arrest was a \u201cJennings J\u201d weapon and that between 10,000 and 100,000 of these weapons were \u201con the street.\u201d Next it was stipulated that Chicago police officer Galegos, if called, would testify that he spoke with Martinez in Spanish and that Martinez had indicated that the shots were fired as Estrada was getting out of Portillo\u2019s vehicle.\nThe defense then presented Marion Zamudio (Zamudio) as a witness. Zamudio testified that he had been with Sanchez on the corner of 24th and Karlov on the night of November 17, 1989. Around midnight a four-door Buick drove up and a black car stopped behind the Buick. The front:seat passenger in the Buick said, \u201cAlmighty Latin Kings.\u201d Sanchez responded, saying \u201cFuck you and Two Six.\u201d Zamudio later explained that Sanchez was a member of the Two-Sixers gang and that the Two-Sixers were rivals with the Latin Kings and the UPP or Underground Party People, which were affiliated gangs.\nAfter Sanchez responded as a Two-Sixer, two shots came from the front of the Buick. Zamudio stated that he asked Sanchez if he was okay and Sanchez said that he was. They both ducked and ran. Zamudio ran north on Karlov and Sanchez ran west on 24th. Zamudio stated that while he ran he looked back and saw someone pointing something at him. Also, as he ran he heard glass breaking and another shot. Later, in a police lineup, Zamudio identified Tinius as the man who had pointed something at him after the shooting in front of 24th and Karlov.\nDetective Browne was recalled to testify. He admitted that Tinius had been taken into custody in regard to the Sanchez shooting, that Tinius had been in a black Lincoln on the night of the shooting and that a gunshot residue test had been performed on Tinius.\nLab technician Berk was then called to testify regarding the residue test. These tests, however, were inconclusive and did not establish that Tinius had fired a gun.\nThe defense rested and the State then called Detective Browne once again for rebuttal. Detective Browne was questioned regarding his interview with Zamudio. Browne testified that Zamudio told him that when the Buick pulled up to the corner the passenger in the Buick had represented down towards the Two-Sixers and that Zamudio had responded in kind. The rear-seat passenger (Estrada) then told them to \u201cgo get fucked\u201d and began to exit the vehicle. Zamudio and Sanchez then took a step backwards. Just then two shots were fired.\nAfter Detective Browne testified, the State rested. The trial court heard argument and then, in a lengthy narrative, found that \u201cdefendant must be guilty by accountability for the shooting of Mr. Sanchez.\u201d However, at the close of the court\u2019s statements, the trial judge stated, \u201cI\" think all of these facts impel but one conclusion. And that\u2019s the defendant on the theory of accountability is guilty of attempt murder.\u201d\nThe case was passed but shortly thereafter the case was recalled. The prosecutor then informed the court that it appeared that a reference had been made to attempted murder. The trial court responded with the following dialogue:\n\u201cTHE COURT: Flow. And also found guilty on first degree murder on accountability. If I said attempt murder, I misspoke.\nMR. ZELAZO [Prosecutor]: I don\u2019t know which it was and just so it\u2019s reflected in the record.\nMR. COYNE [Defense Attorney]: You clearly said it. You clearly said it.\nTHE COURT: Bring him back out. He is not charged with attempt murder. How could I mean that. So let\u2019s bring him back out.\nTHE COURT: Okay. Mr. Estrada, there is [sic] been some confusion. And I might have misspoken even. During the course of my remarks, it appears that your counsel and maybe the state\u2019s attorney, and I know my clerk thought I said I had found you guilty by accountability of attempt murder. If I said that it was in error.\nYou are not charged with attempt murder. You\u2019re charged only with first degree murder. And the actual correct statement that I intended and thought I had made was that I found you guilty by accountability of first degree murder. And that will be the finding of this Court, just so there is nothing unclear. And Mr. Estrada seems to understand that also. Thank You.\u201d\nNevertheless, on March 13, 1991, defendant brought a motion in arrest of judgment, contending that the court\u2019s finding that defendant was guilty of attempted murder, although a misstatement by the court, was a final judgment rendered in open court which could not be changed. Furthermore, defense counsel argued that this judgment operated to acquit Estrada of the greater offense of murder and, because the finding was legally inconsistent, jeopardy attached and the verdict actually operated to discharge the defendant of all charges.\nThe trial court denied the motion for arrest of judgment and the motion for new trial that was tendered immediately thereafter. Estrada was later sentenced to the minimum term of 20 years\u2019 imprisonment. He now brings this timely appeal.\nOn appeal, Estrada contends (1) that the trial court improperly applied a \u201cconcerted action\u201d test in finding him accountable for first degree murder, (2) that there was insufficient evidence for the trial court to have found him guilty of first degree murder, (3) that the trial court improperly relied upon evidence taken from a codefendant\u2019s statement which should not have been considered because the trials were severed, (4) that, even if properly considered, the codefendant\u2019s statement established that the act of shooting was done recklessly, establishing the mental state for involuntary manslaughter, (5) that because the trial court found Estrada guilty of attempted murder and signed a mittimus to that effect on February 8, 1991, and because the court failed to vacate that order, the trial court was powerless to substitute a finding of murder for the finding of attempted murder on March 13, 1991, at the sentencing hearing wherein defendant moved to arrest judgment, and (6) that Estrada\u2019s conviction is inconsistent with Degollado\u2019s acquittal and, therefore, must be reversed.\nDespite the numerous issues raised by Estrada, we believe that the dispositive question is whether Estrada, under the facts of this case, may be held legally accountable for murder or whether the trial court improperly applied a \u201cconcerted action\u201d theory. Because we find no evidence of a common design or plan, we reverse Estrada\u2019s conviction.\nIllinois criminal law states that a person is accountable for the crime of another if:\n\u201cEither before or during the commission of an offense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 5 \u2014 2.)\nIn this case the trial court found Estrada accountable for the crime on a theory of a common design. The statute does not mention the term \u201ccommon design,\u201d but certain case law does. For example, in People v. Coleman (1991), 222 Ill. App. 3d 614, 584 N.E.2d 330, the court discussed the association between \u201ccommon design\u201d and criminal accountability. The Coleman court found that a defendant could be shown to possess the criminal intent of a principal, and thus be held accountable, through proof that they shared a community of purpose or \u201ccommon design.\u201d The court went on to hold that common design need not be expressly stated, but rather, may be deduced from the circumstances surrounding the incident, which might include defendant\u2019s presence at the commission of the crime without disapproving or opposing it.\nThe Hlinois Supreme Court has also followed the \u201ccommon plan or purpose\u201d concept in determining accountability. However, this has only been done where the evidence discloses, at least by inference, that in addition to being present at the scene of the crime, the accountable party had some advance knowledge of the criminal plan or scheme. (People v. Furby (1990), 138 Ill. 2d 434, 563 N.E.2d 421.) Otherwise, it is well established that mere presence at the scene of a crime is not sufficient to sustain a conviction on an accountability theory. See People v. Furby, 138 Ill. 2d 434, 563 N.E.2d 421; People v. Ceasar (1992), 231 Ill. App. 3d 54, 596 N.E.2d 89 (even though defendant and codefendant both ran after the commission of a theft, defendant\u2019s mere presence at the scene of the theft was insufficient to hold defendant responsible for the theft on a theory of accountability. One justice dissented, apparently because defendant fled with the culprit).\nIn the present case there is no direct evidence tying Estrada to a common plan or design to shoot Sanchez. The evidence shows that Estrada, who left the car brandishing a tire iron, had already exited the car when Portillo fired a gun at Sanchez. Although Estrada\u2019s acts indicate that he intended to intimidate Sanchez, there is no evidence that he was aware that Portillo intended to shoot at Sanchez. In fact, it is less likely that Estrada would leave the car to pursue Sanchez if he knew that Portillo intended to fire at Sanchez. Furthermore, any inference that Estrada was part of a common design or plan is negated by the fact that Degollado, who was also present in Portillo\u2019s car prior to the shooting, was found not to be accountable by the trial judge.\nFor these reasons, we believe that we are required to follow the case law which states that mere presence at the commission of an offense without any affirmative act of assisting, abetting or encouraging the act is not sufficient to make a party accountable for the commission of an offense. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) In accordance with this case law, we must reverse Estrada\u2019s conviction and sentence. The evidence fails to provide, beyond a reasonable doubt, any basis to hold Estrada accountable for Sanchez\u2019s death.\nReversed.\nGORDON, P.J., and COUSINS, J., concur.\n\u2018Although reference is made to these statements being placed into the trial record, they were not read into the record during trial and the record on appeal does not contain copies of these written statements. Therefore, this court is unaware of the exact information that these statements contain.\nThe proper spelling of this person\u2019s name was never established. There appear to be several spellings used including \u201cTinknius,\u201d \u201cTiknius\u201d and \u201cTinius.\u201d For the sake of consistency, this court will use the \u201cTinius\u201d spelling in reference to this individual, regardless of the various spellings that may be used in the transcript.\nWe recall here that codefendant Degollado was granted a directed verdict at the close of the State\u2019s case and that codefendant Portillo, who was the shooter according to the evidence presented at trial, was convicted of murder. Portillo\u2019s appeal (No. 1\u2014 91 \u2014 1526), although filed prior to Estrada\u2019s appeal, still pends before another division of this court.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Daniel T. Coyne and Geary W. Kull, both of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Barbara L. Jones, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ESTRADA, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201491\u20141529\nOpinion filed February 11, 1993.\nDaniel T. Coyne and Geary W. Kull, both of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Barbara L. Jones, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0177-01", "first_page_order": 195, "last_page_order": 203 }