{ "id": 2183279, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS ARROYO, Defendant-Appellant", "name_abbreviation": "People v. Arroyo", "decision_date": "2002-04-08", "docket_number": "No. 2\u201400\u20140498", "first_page": "861", "last_page": "878", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 861" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "pin_cites": [ { "page": "309-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "255 Ill. App. 3d 103", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2989922 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "109" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0103-01" ] }, { "cite": "173 Ill. App. 3d 998", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3477885 ], "year": 1988, "pin_cites": [ { "page": "1012-13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0998-01" ] }, { "cite": "217 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5282424 ], "year": 1991, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0230-01" ] }, { "cite": "146 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597287 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "55" }, { "page": "55" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0044-01" ] }, { "cite": "72 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582372 ], "year": 1979, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0445-01" ] }, { "cite": "389 Ill. 361", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2505447 ], "year": 1945, "pin_cites": [ { "page": "368-69" } ], "opinion_index": 0, "case_paths": [ "/ill/389/0361-01" ] }, { "cite": "158 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780276 ], "year": 1994, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0319-01" ] }, { "cite": "89 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5494030 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "195" }, { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0189-01" ] }, { "cite": "72 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443247 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "42" }, { "page": "42" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0036-01" ] }, { "cite": "51 F.R.D. 315", "category": "reporters:specialty", "reporter": "F.R.D.", "year": 1971, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "516" }, { "page": "516-19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "61 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3345906 ], "year": 1978, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0428-01" ] }, { "cite": "245 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383911 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "892" }, { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0890-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "127" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "141 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238211 ], "year": 1990, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0040-01" ] } ], "analysis": { "cardinality": 1280, "char_count": 43785, "ocr_confidence": 0.768, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.2942327911781729 }, "sha256": "5cb494f8526f5fd1ae0b2ba1ab402a2ea279067ec50086ff2ba99d393e8ac4f8", "simhash": "1:bd983ffe9c80dcca", "word_count": 7552 }, "last_updated": "2023-07-14T17:11:21.532369+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. CARLOS ARROYO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nDefendant, Carlos Arroyo, was convicted of first-degree murder and was subsequently sentenced to 60 years\u2019 imprisonment. This court reversed that conviction and remanded the cause for a new trial. People v. Arroyo, No. 2 \u2014 97\u20140158 (1998) (unpublished order under Supreme Court Rule 23(b)). Defendant was retried before a jury, was convicted, and was sentenced to 54 years\u2019 imprisonment. Defendant now appeals, alleging that (1) the prosecutor made improper comments during opening statement; (2) the prosecutor made improper comments during closing argument; and (3) defendant was denied the effective assistance of counsel at trial. For the reasons that follow, we reverse the judgment of the circuit court of Lake County and remand for a new trial.\nI. FACTS\nDuring the State\u2019s opening statement, the prosecutor remarked that Diana Zuniga, an eyewitness who testified at defendant\u2019s first trial, was serving a 20-year prison sentence. Following the trial court\u2019s sustaining of defendant\u2019s objection to that remark, the prosecutor told the jury that Zuniga was convicted of being the getaway driver in this homicide. Defendant objected to the remarks and moved for dismissal or a mistrial. The motions were denied. The propriety of these statements is contested on appeal.\nAt trial, the State called Kelly Peterson, who testified that on May 7, 1996, she saw a man in a brown jacket walking along Washington Street as she drove home from work. According to Peterson, a man wearing a red, hooded sweatshirt jogged up behind the man in the brown jacket. Peterson looked away and then heard a crash from the direction of the two men. She looked back and saw the man in the red, hooded sweatshirt raise his right arm and fire two or three shots at the man in the brown jacket. Peterson testified that she did not see the shooter\u2019s face but that he was about 5 feet 7 inches or 5 feet 8 inches tall, and shorter than the man who was shot.\nAngela Demoe testified that she was working at Enterprise Car Rental on Washington Street on May 7, 1996. Shortly after 6:15 p.m., she was pulling out of the Enterprise parking lot in a white Nissan Pathfinder. Demoe noticed two men approaching. One man was wearing a brown jacket and was walking along the curb. The other man was wearing a red sweatshirt and approached at a diagonal, walking fast. As Demoe turned out of the parking lot onto Washington Street, she heard two pops, which she thought were firecrackers. At that point, Demoe looked into her rearview mirror and saw the man in the red sweatshirt heading back in the direction he came from. Demoe saw the man in the red sweatshirt from about 25 feet. At the time, it was still daylight and she made eye contact with him. According to Demoe, the hood of the red sweatshirt was up tightly around the man\u2019s face, but she could see his eyebrows, eyes, nose, and mouth for five or six seconds. Demoe said that the man in the brown jacket was taller than the man in the red sweatshirt, who was about 5 feet 3 inches or 5 feet 4 inches tall.\nOn May 7, 1996, a detective showed Demoe an array of six photographs that did not include defendant\u2019s picture. Demoe did not identify the shooter from any of the photographs but did indicate that one individual pictured looked similar to the man in the red sweatshirt. On May 9, 1996, Detective Mark Tkadletz showed Demoe a different array of six photographs that also did not include a picture of defendant. Demoe pointed to the man pictured in the lower left-hand corner of the array and indicated that she was pretty sure that was the man. Later testimony established that she pointed to a picture of Juan Salgado.\nOn May 13, 1996, Detective Yancey showed Demoe yet another six-photograph array. Demoe identified the man pictured in photograph No. 5 as the man in the red sweatshirt. Demoe said that the man in photograph No. 3 was the same man she identified in the photograph array shown to her on May 9, 1996. Demoe also said that the man pictured in photograph No. 5 was not in the first two arrays that were shown to her. Later testimony established that defendant was the man pictured in photograph No. 5 and that Juan Salgado was pictured in photograph No. 3. In court, Demoe identified defendant as the man she saw in the red sweatshirt on May 7, 1996. On cross-examination, Demoe said that she may have told Detective Tkadletz on May 9, 1996, that she was 98% sure the man pictured in the lower left-hand photograph of the second array was the shooter.\nDetective Thomas Luka testified that defendant gave a written statement to him and Detective Yare on May 11, 1996. The statement consisted of defendant\u2019s answers to the detectives\u2019 questions. Defendant made no mention of the May 7, 1996, shooting in this statement.\nDetective Tkadletz testified that he and Detective Yare interviewed defendant at 12 noon on May 13, 1996. Just before they interviewed defendant, Detectives Tkadletz and Yare had obtained a videotaped statement from Juan Salgado indicating that defendant was the shooter. When confronted with that information, defendant became upset, began raising his voice, and called the detectives liars. Detective Tkadletz said that they then showed defendant the videotape of Saiga-do\u2019s statement naming defendant as the shooter. Shortly thereafter, defendant demanded to be put back into his cell.\nSergeant Richard Davis testified that on May 13, 1996, at approximately 2:30 p.m., defendant knocked on his cell door and indicated that he was ready to tell the truth. According to Sergeant Davis, Detectives Tkadletz and Yare were at a meeting at the State\u2019s Attorney\u2019s office, so Sergeant Davis and Lieutenant Hendley took a statement from defendant. Sergeant Davis identified the typed statement that defendant gave on May 13, 1996, at 2:40 p.m. This statement was admitted into evidence and was read to the jury as follows:\n\u201cI\u2019m not going to lie to you guys anymore. I was with Juan Sal-gado, we were supposed to be going to pick up my cousin Diane [sic], and we were driving down Washington St. to Greenleaf and Juan saw a guy and said is that Fonzie. I said I don\u2019t know. Instead of turning right on Greenleaf he turned left and came up behind him and as we drove by, Juan said ya that\u2019s Fonzie we got to take care of him. I said no we have to pick up Diane [sic] at the dentist office.\nWe drove over to the dentist office where Diane [sic] works on Greenleaf, and we picked up Diane [sic]. I got into the backseat. Juan then drove back to Washington St. and said where did he go, where did he go. *** Juan drove to Washington and Teske and said where is he, where is he, do you see him.\nI didn\u2019t see him, then Juan said there he is, and he turned right on Washington and then made a left at the first street. Juan gave me the gun and said you take care of him. I\u2019m going down to 41 and I\u2019ll come back around and pick you up on this street.\nJuan left and I saw Fonzie coming on Washington. I just stood there and I couldn\u2019t do it, so I started walking back up that street toward Grand Ave. Juan had pulled around and I got into the backseat and he said did you hit him. I said no, but I told Juan that there was a police car by Waukegan Tire, so I couldn\u2019t. Juan said your [sic] just scared. And he drove back to Washington St. and tinned into the next block after we passed Fonzie. Juan said give me the gun I\u2019ll do it.\nJuan got out of the car and he told Diane [sic] to drive and said go to the next street and turn left and pick me up by the apartments. Diane [sic] and I were in the first driveway on that street across from where they are building that new building. Juan was walking up toward Fonzie and I heard the shots and then saw Fonzie fall. Fonzie then got up and fell again.\nDiane [sic] turned into the street by the apartments, and then we saw this lady in a white truck, who we thought was watching Juan, so we made a [U]-turn on the street and went back to Washington St. and Juan was running through the grass toward the apartments.\nWe turned right and then turned right on the first street where we first dropped Juan off. We pulled into the same driveway, and then Juan came running up to the car and got in and said I hit him. I knew he hit him, cause I saw Fonzie drop.\nJuan said lets [sic] go to Antioch, so we drove over by Wadsworth and got some water for Juan and we drove to Antioch.\u201d\nIn this typed statement, defendant also indicated that \u201cDiane [sic]\u201d is his cousin \u201cDiane [sic]\u201d Zuniga, that the gun was a .25-caliber automatic, and that \u201cFonzie\u201d is Jose Soto.\nAccording to Detective Tkadletz, at about 2:30 p.m. on May 13, 1996, he and Detective Yare received a phone call at the State\u2019s Attorney\u2019s office informing them that defendant wanted to make a statement. Detectives Tkadletz and Yare returned to the Waukegan police station and spoke to defendant at approximately 3:30 p.m. Detective Tkadletz said that they asked defendant to write out in full detail and in his own handwriting the events that he had related to Davis and Hendley. Defendant\u2019s handwritten statement was admitted into evidence at trial and was substantially the same account he gave to Sergeant Davis and Lieutenant Hendley. In his handwritten statement, defendant additionally indicated that at Salgado\u2019s direction he hid the gun in the basement of the house in which defendant was living in Zion.\nDefendant took the detectives to the address in Zion and retrieved the gun. After retrieving the gun, the detectives returned with defendant to the Waukegan police department. Detective Tkadletz said that he and Detective Yare received information from Detective Yancey that Angela Demoe had identified defendant as the shooter. According to Detective Tkadletz, when defendant was confronted with that information he put his head down and shortly thereafter said the words, \u201cI shot him.\u201d At that point defendant told the detectives that it happened the same as the handwritten statement except he was the shooter. The detectives then had defendant go through the whole story again. According to Detective Tkadletz, defendant declined an offer to write out another statement and told them \u201cI just want you guys to put it down and I will sign it.\u201d At that point, Detectives Tkadletz and Yare put together the information defendant provided and typed out defendant\u2019s statement. Detective Tkadletz said that, after he typed out the statement, defendant appeared to read it and then signed the statement. Detective Tkadletz identified the statement that he typed out on May 13, 1996, at 6 p.m.; it was admitted into evidence at trial, and reads as follows:\n\u201cJuan and I were in his purple Chevy Cavalier. We were going to pick up my cousin, Diana[,] who was working in Park City. Juan was driving and we were going down Washington St. We stopped in at the dentist office and Diana said that she was going to be late. We were hungry so we went to Wendy\u2019s in Gurnee. Juan ordered and we went back to the dental office. We were on Washington St., and we saw a guy in a brown jacket walking down the street. Juan looked at me and said, \u2018That\u2019s him!\u2019 Juan told me to get out and take care of this. I said no because we had to pick up Diana at the office. Juan then went to the dental office and picked up Diana while I stayed in the car. I jumped into the back and Diana got in the front of the car. We pulled out of the lot and turned left onto Greenleaf St. He went up to [sic] streets and turned left. [H]e said, \u2018this isn\u2019t the road that I want to be on, I need to get on Teske. [\u2019] He made a U-turn and turned left onto Greenleaf. He went up to Belvidere and drove east to Teske. He turned left onto Teske and went to Washington St. We saw Fonzie walking and Juan said that you gotta take care of this. Juan said that they, (the gang), would take care of me or my family if I didn\u2019t take care of this. Juan dropped me off. I had the .25 cal. gun with me as I got out of the car. I don\u2019t know what road we were on. I waited for Fonzie to get there. I just couldn\u2019t do it so I walked up towards Grand where Juan said that he would pick me up. When I got in the car he said, [\u2018]Did you hit him?[\u2019] I said no. I told him that I saw a police car pull into the parking lot of the tire place. Juan told me that I needed to take car [sic] of this and that I knew why. Juan pulled out onto Washington St., and turned left. We passed Fonzie and turned left onto the next street. I got out and waited for Fonzie to pass. Juan said that he would pick me up on the next street. I got out and started to walk up behind Fonzie. I was wearing a red hooded sweatshirt and I pulled the hood over my head as I got closer to him. I cut across the parking lot and ran up behind Fonzie. That is where I shot him.\nAfter I shot him I ran back the way I came. I was running across the parking lot when I saw a white truck. I stopped for a moment and noticed that Juan had pulled a U-turn and went back out onto Washington St. I ran through the apartments and over to the driveway off of the other street where they dropped me off. I ran up to the car and got in on the passenger side of the car. Juan was driving and he was driving the whole day. I never saw Diana driving the car, but she could have switched with him when they turned around. I got into the car and they backed out of the driveway. We then drove towards Grand Av. While we were driving I took off the red sweatshirt. The sweatshirt was thrown out of the car as we passed some apartments. We then drove to Antioch to see Robert and Ramon.\nCarlos!,] did Diana know what you guys were going to do?\nYeah we told her when she got into the car.\nCarlos!,] the gun that was recovered!,] was that the gun that you used to shoot Jose Soto?\nYes.\nCarlos!,] is there anything else you can add to the statement?\nNo, that\u2019s it.\nCarlos!,] now is this the truth about what happened.\nYes, I know I lied before, but this is the truth.\u201d\nDetective Tkadletz further testified that, shortly after signing the statement, defendant began to cry and said that Salgado made him do it. Defendant got down on one knee and asked for help and also asked if he could get probation.\nSergeant Robert Kerkorian testified that in May 1996 he was the supervisor of the Waukegan police department\u2019s gang unit. According to Sergeant Kerkorian, Jose Soto was a self-admitted member of the Maniac Latin Disciples street gang, and defendant was a self-admitted member of the Latin Lovers. Sergeant Kerkorian testified that in May 1996 the Latin Lovers were at war with the Maniac Latin Disciples. Sergeant Kerkorian explained that, approximately a year before this shooting, a Maniac Latin Disciple killed a Latin Lover at a party in Chicago. After that, the Latin Lovers and Maniac Latin Disciples began shooting each other. Also, in September or October 1995, the then-leader of the Latin Lovers, Francisco Aguillar, was shot. According to the Waukegan police department\u2019s investigation, Soto was a suspect in the shooting of Aguillar.\nThe first witness called by the defense was Patrick Fischer, who testified that he was a manager at Enterprise Rent-a-Car on May 7, 1996. Fischer said that he observed a man in a red sweatshirt running eastbound on Washington Street on the day of the shooting. Fischer said the man was a black male approximately 6 feet tall, 180 pounds, in his late 20s or early 30s. Fischer also said that he had a conversation with Angela Demoe on May 7, 1996, and she told him that she saw the man in the red sweatshirt get into a white Corolla or Corsica.\nThe defense also called Juan Morales, who testified that he is a member of the Latin Lovers street gang. Morales said that he is friends with defendant, and his sister has a child by defendant. Morales also said that he is friends with Juan Salgado. In 1996, Morales was second in command of the Latin Lovers in Waukegan and Morales\u2019s cousin Francisco Aguillar was the leader. Defendant was also a member of the Latin Lovers in 1996 and went by the name \u201cMouse\u201d because he was short. In 1996, Juan Salgado was the chief enforcer of the Latin Lovers in Waukegan, which meant that he was in charge of all the violent crimes for the gang.\nMorales testified that on May 17, 1996, he had a conversation with Juan Salgado about the shooting of Jose Soto. The conversation took place at Morales\u2019s cousin\u2019s house in Waukegan, and another Latin Lover named Freddy Zuniga was also present. According to Morales, Freddy Zuniga telephoned Morales and said he was bringing someone over to speak to Morales. Morales heard Salgado in the background. Morales set up a video recorder in the living room where it could not be seen. Morales said that he set up the camera for his protection because he had heard that Salgado \u201ctricked\u201d on defendant to get out of jail, and Morales was afraid that Salgado was going to try to implicate him in the shooting. Morales said that \u201ctricked\u201d meant to blame the murder on defendant. Shortly after Morales set up the video camera, Freddy Zuniga and Salgado came to the house. At trial, Morales identified the videotape that he made of the conversation. The videotape was admitted into evidence and played for the jury.\nIn the videotape, Salgado and Freddy Zuniga entered the house and Morales told Salgado to get out of his house. Salgado repeatedly stated that he wanted to \u201cexplain\u201d and at one point asked Morales, \u201cCan you spare two minutes of your time, bro\u2019, before I break?\u201d Morales then told Salgado that he did not know why Salgado did what he did and said, \u201cYou gonna blame the man on s\u2014 that he didn\u2019t even f \u2014 ing do?\u201d\nMorales said to Salgado that \u201cyou guys\u201d killed \u201cthe guy,\u201d that Salgado blamed Mouse, and that Mouse said that Salgado threatened to kill Morales\u2019s sister.\nSalgado again said that he wanted to explain, and continued, \u201cLook, bro\u2019. I know if I got out, bro\u2019, if I put, you know, put the blame on him, I\u2019ll get out. My parents would put the money up.\u201d Salgado also said, \u201cLook bro\u2019, look, I feel bad, bro\u2019, blaming this brother. His birthday\u2019s f \u2014 ing coming up, you know.\u201d Morales informed Salgado that defendant\u2019s birthday was \u201cf \u2014 ing today.\u201d Salgado said, \u201cbro\u2019, I know, bro\u2019, that\u2019s why I feel bad, bro\u2019. That\u2019s why I got to talk to you bro\u2019. He has a baby on the way, bro\u2019. You don\u2019t think I feel like s \u2014 ?\u201d Salgado and Freddy Zuniga left the house, and the tape ended.\nMorales said that when Salgado said he was going to \u201cbreak\u201d that meant he was going to leave the country. When asked where Salgado was currently, Morales said that he was in Mexico.\nLouise Battens witnessed the shooting from her vehicle as she drove on Washington Street. Battens said the shooter wore a red nylon jogging coat. Battens was able to observe the shooter\u2019s face and described him as 5 feet 7 inches or 5 feet 8 inches tall and 175 to 180 pounds. After observing defendant in court, Battinus said that defendant was \u201cabsolutely not\u201d the shooter. When Battinus was shown the videotape made by Morales, she identified Salgado as the shooter.\nDefendant testified that on May 7, 1996, he and Juan Salgado were members of the Latin Lovers street gang. Salgado was \u201cchief security,\u201d meaning he was responsible for all of the shootings and violence of the gang. On the day in question, Salgado and defendant went in Salgado\u2019s purple Cavalier to pick up defendant\u2019s cousin Diana Zuniga at the dental office where she worked. Upon learning that Zuniga was not ready to leave work, Salgado and defendant drove to a Wendy\u2019s restaurant. On their way back to pick up Zuniga, Salgado saw a person in a brown jacket walking along Washington Street and asked defendant if the person was Fonzie. Defendant said that he did not know. Salgado turned around to get another look, and then said that it was Fonzie.\nAccording to defendant, Salgado gave him a hooded sweatshirt and told him to put it on. Defendant put the hooded sweatshirt on and then Salgado reached under the seat, pulled out a gun, and said, \u201c[Hjere, take this and take care of business.\u201d Defendant understood Salgado to mean he should go and shoot Jose Soto. Defendant told Salgado \u201cno,\u201d indicating that they had to go pick up Zuniga from work. Defendant said that they picked up Zuniga, at which point he got into the backseat, Zuniga sat in the front passenger seat, and Sal-gado continued to drive.\nDefendant testified that, after relocating Soto, Salgado told him to get out of the car and take care of Soto. Salgado told defendant to go near some bushes and wait for Soto to come by and take care of him. Salgado gave defendant a gun and said that he would pick him up when he was done. Defendant said that he went to the bushes but could not do it because he had never shot anyone before. Defendant said that when Salgado picked him up he lied to Salgado, saying that there was a policeman nearby so he did not shoot Soto. Salgado turned around and looked at him and said, \u201c[Y]ou are just scared, give me that,\u201d and Salgado snatched the gun from him. Defendant explained that if he had told Salgado that he just could not do it, Salgado would have done something to him. Salgado pulled into a driveway, turned around, and said, \u201c[G]ive me that hood.\u201d Defendant said that he took the sweatshirt off and gave it to Salgado. According to defendant, Sal-gado turned around, pointed the gun at him, and said, \u201cI will take care of you later.\u201d\nDefendant further testified that Salgado got out of the car and told Zuniga to drive. Salgado ran toward Washington Street. Zuniga pulled out of the driveway, and when they got back onto Washington Street, defendant saw Salgado run up behind Soto and shoot him. Sal-gado returned to the car and said, \u201c[Ljets [szc] go, drive toward Antioch.\u201d Defendant said that he did not leave after Salgado left the car because Salgado threatened him, his family, and his pregnant girlfriend.\nDefendant said that he was arrested on May 10, 1996. He was placed in a holding cell at the Waukegan police department, and Detectives Luka and Yare came and talked to him the next morning. Defendant said that he initially failed to be truthful with the detectives because, after the shooting, Salgado pulled him and Zuniga aside and told them what to say in the event they were questioned by the police.\nA couple of days later, Detective Yare told him that Salgado blamed him for the murder. Detective Yare showed defendant a videotape of Salgado saying that defendant was the one who killed Jose Soto. Defendant said he got upset, asked for an attorney, and said he did not want to speak to the detectives anymore. Defendant was put back in a cell where he saw Salgado walk past with a detective. Defendant stated that Salgado laughed when he saw defendant. A couple of minutes later defendant started to bang on his cell door. Defendant told the sergeant that he wanted to tell the truth and that he was not going to lie anymore. Defendant testified that he told Lieutenant Hendley and Sergeant Davis that Salgado shot Jose Soto. Defendant identified the typed statement Lieutenant Hendley and Sergeant Davis prepared and indicated that he signed the typed statement and that it was the truth.\nDefendant testified further that at 3:30 p.m. that same day Detectives Tkadletz and Yare asked him to write a statement by hand. Defendant wrote out a statement indicating that Salgado shot Soto. Defendant identified his handwritten statement, said that he signed it, and that it was the truth. According to defendant, the detectives told him that they already had an eyewitness that identified Salgado as the shooter, that they were thankful for his help, and asked if he knew where the gun used to shoot Soto was located. Defendant indicated that the detectives told him that he would only be charged with mob action because they had an eyewitness that said Salgado was the shooter. Defendant said that the detectives told him that if he took them to the gun they would take him to bond court when they got back. Defendant took the detectives to the house where he lived and showed them the place in the basement where Salgado had hidden the gun.\nDefendant said that, when they returned to the Waukegan police department, Detective Yare came in and said, \u201cOkay, well, Carlos, we have a problem.\u201d Detective Yare said that they had one person saying that she saw Salgado do the shooting and that defendant\u2019s statements were consistent with that account. Yare also said, \u201c[0]n the other hand, Salgado says you did the shooting and there are eyewitnesses saying they saw you do the shooting.\u201d According to defendant, Detective Yare began telling him to tell the truth. Defendant said that he told the detectives that he already told them the truth. The detectives kept telling him that he was lying. Defendant testified that at 6 p.m. Detectives Yare and Tkadletz gave him another typed statement and told him that it was his handwritten statement all typed up. Defendant said that he signed the statement without reading it and that no one read it to him. Defendant also said that the detectives told him that after he signed the statement he would be taken to bond court and released.\nAfter resting defendant\u2019s case, one of defendant\u2019s attorneys stated for the record that they did not call Diana Zuniga as an exculpatory witness, even though she was called to exculpate defendant and corroborate defendant\u2019s testimony in the first trial, because of the comments made by the State in its opening statement that she was convicted as the getaway driver and was sent to prison. The defense renewed its motion to dismiss or for a mistrial, arguing that the State\u2019s comments during its opening statement shifted the burden of proof and rendered defendant unable to call an exculpatory witness. When asked to further explain defendant\u2019s position, one of defendant\u2019s attorneys said:\n\u201cBut now in [the jurors\u2019] minds, the bottom line is well, if she just drove the car and they convicted her and they sent her to prison, well, yes, [defendant] was in the car, I guess if they convicted her, I guess we better convict [defendant], *** Even if in good faith they thought for sure we were going to call her, there is not a person in this room that doesn\u2019t know that you can never bring up imprisonment; impeachment of a prior if she testifies is solely as that.\nYou can bring up the fact that she was convicted of a crime and now obviously within the case law about the specific crime versus say a felony, but that is it, I can\u2019t go into sentencing or anything else.\u201d\nThe trial court denied the defendant\u2019s motion to dismiss or for a mistrial and characterized the decision not to call Zuniga as trial strategy. In addition to arguing that defendant was the person who shot Jose Soto thereby causing his death, the State argued that defendant was accountable for the actions of Salgado, if Salgado was the shooter, and was therefore guilty of first-degree murder by accountability. The jury was given an accountability instruction over defendant\u2019s objection.\nAfter deliberating, the jury found defendant guilty of first-degree murder, signing the verdict form indicating the finding was based on defendant\u2019s own actions, not on his accountability for the acts of Sal-gado. The trial court sentenced defendant to 54 years\u2019 imprisonment. Defendant now appeals his conviction.\nII. DISCUSSION\nDefendant makes three arguments on appeal: (1) that the prosecutor made improper comments during opening statement; (2) that the prosecutor made improper comments during closing argument; and (3) that he was denied the effective assistance of counsel at trial. Because we reverse and remand the cause for a new trial based on defendant\u2019s first argument, we need not address his second and third contentions.\nDefendant argues that the comments by the prosecutor during the State\u2019s opening statement deprived him of a fair trial. An opening statement may include a discussion of the evidence and matters that reasonably may be inferred from the evidence. People v. Smith, 141 Ill. 2d 40, 63 (1990). Counsel may summarily outline the expected evidence and reasonable inferences from the evidence, but no statement may be made in opening that counsel does not intend to prove or cannot prove. People v. Kliner, 185 Ill. 2d 81, 127 (1998). Reversible error only occurs where the remarks, referring to evidence which later proves to be inadmissible, are attributable to the deliberate misconduct of the prosecutor and result in substantial prejudice to the defendant. Kliner, 185 Ill. 2d at 127.\nDuring the State\u2019s opening statement the prosecutor made the following remarks:\n\u201cYou are going to hear evidence in this case, ladies and gentlemen, about the two other gang members that were with the defendant that day; Juan Salgado and a woman named, Diane [szc] Zuniga. They were also members of the Latin Lovers street gang, same gang as the defendant.\nYou are going to hear evidence that Diane [szc] Zuniga and Juan Salgado too were involved in the shooting. Diane [szc] Zuniga is going to testify, she is currently in prison serving a twenty year sentence.\u201d\nAt that point in the State\u2019s opening statement, defense counsel posed an objection and asked to be heard outside the presence of the jury. Defense counsel argued that informing the jury that Zuniga was serving a sentence was improper and that, even if Zuniga testified and was impeached with her conviction, it would be improper to disclose her prison sentence to the jury. The defense moved for a mistrial based on prosecutorial misconduct. The trial court sustained the objection but denied the motion for a mistrial. The jury was not advised of any of these arguments, motions, or rulings. The trial court then instructed the jury that what the attorneys say in opening statements is not evidence. Next the prosecutor said:\n\u201cYou will hear evidence, Diana Zuniga is expected to testify in this case. She has been convicted of being the get-a-way [sic] driver of this homicide.\u201d\nAt that point, defense counsel objected again and asked to be heard outside the presence of the jury. The State informed the trial court that it did not intend to call Zuniga as a witness. The trial court sustained the defendant\u2019s objection and told the prosecutor not to talk about Zuniga. Defense counsel again moved for a mistrial. That motion was denied. The trial court did not inform the jury of its ruling on the objection, nor did the trial court advise the jury to disregard the comment. The prosecutor continued with his opening statement without further mentioning Zuniga. The defense renewed its objection to the remarks the State made during opening statement multiple times during the trial and moved for a mistrial based on prosecutorial misconduct. The trial court denied the motions each time.\nDefendant contends that the above comments deprived him of a fair trial because (1) they amounted to deliberate misconduct and substantially prejudiced defendant by alleging facts that were not produced at trial; (2) they concerned improper impeachment of a potential defense witness and undermined the presumption of innocence; and (3) they were improper comment on the possible sentence defendant was facing. The State contends that the prosecution, in good faith, expected Zuniga to testify and exculpate defendant as she did at defendant\u2019s first trial and, therefore, she would be properly impeached with her conviction of murder.\nWe begin by noting, as did the trial court, that the State\u2019s remark that Zuniga was serving a 20-year prison sentence was improper. This is so because it disclosed or suggested the potential sentence defendant faced if the jury found him guilty. The specific sentence received by an accomplice is properly excluded where such disclosure would reveal the possible sentence facing defendant. People v. Brewer, 245 Ill. App. 3d 890, 892 (1993). A jury is the trier of fact and does not have the responsibility of imposing a sentence; therefore, the possible penalty facing defendant is irrelevant and immaterial to the jury. People v. Lake, 61 Ill. App. 3d 428, 431 (1978). These concerns are addressed in Illinois Pattern Jury Instructions, Criminal, No. 1.01 (4th ed. 2000):\n\u201cYou are not to concern yourself with possible punishment or sentence for the offense charged during your deliberation. It is the function of the trial judge to determine the sentence should there be a verdict of guilty.\u201d\nHaving determined that the prosecutor\u2019s first remark was improper, we now turn to a discussion of the second remark. At the time of its opening statement, the State was not entitled to conclude that it would be permitted to impeach Zuniga with her prior conviction. The rule for impeachment by prior conviction adopted in People v. Montgomery, 47 Ill. 2d 510 (1971), including its balancing test, applies to impeachment by prior conviction of witnesses other than the accused. See Montgomery, 47 Ill. 2d at 516 (the then-proposed Federal Rule of Evidence 609 (51 F.R.D. 315, 393 (1971)) that was adopted in Montgomery speaks to impeachment of witnesses). In this case, neither party moved in limine for a determination of the admissibility of Zuniga\u2019s prior conviction to impeach her testimony. Therefore, even if the State assumed that defendant was going to call Zuniga, it was presumptuous to mention an impeaching conviction in the opening statement when there had not been a determination by the trial court, as required by Montgomery, that the probative value of the conviction was not substantially outweighed by the danger of unfair prejudice (Montgomery, 47 Ill. 2d at 516-19).\nIf we were to assume for the sake of argument that Zuniga\u2019s prior conviction would have been admissible to impeach her testimony, it would have been improper to disclose to the jury that Zuniga\u2019s murder conviction arose out of the same incident as did the allegations of murder against defendant. It is well settled that evidence of an alleged accomplice\u2019s conviction of an offense for which the defendant is being tried is inadmissible as proof of the guilt of the defendant. People v. Sullivan, 72 Ill. 2d 36, 42 (1978). \u201cA defendant who is separately tried is entitled to have his guilt or innocence determined upon the evidence against him without being prejudged according to what has happened to another.\u201d Sullivan, 72 Ill. 2d at 42.\nIn clarifying the Sullivan ruling that an accomplice\u2019s testimony can be impeached with that accomplice\u2019s prior conviction of the same offense for which defendant is on trial, our supreme court explained that Sullivan \u201cmerely articulates the holding in *** Montgomery\u201d and is \u201climited to the defined standards set forth in *** Federal Rule 609.\u201d People v. Stover, 89 Ill. 2d 189, 195 (1982). In other words, Sullivan does not provide a basis to admit a prior conviction to impeach a witness independent of the rule stated in Montgomery. See Stover, 89 Ill. 2d at 195.\nUnlike a defendant, who can be impeached only with the public record of his conviction during the State\u2019s rebuttal case (People v. Coleman, 158 Ill. 2d 319, 337 (1994)), convictions of witnesses other than the accused may be proved on cross-examination (People v. Roche, 389 Ill. 361, 368-69 (1945); People v. Kellas, 72 Ill. App. 3d 445, 450 (1979)). Generally, the limit to which a witness may be impeached on cross-examination with prior convictions is the introduction of certified copies of the convictions. People v. Enoch, 146 Ill. 2d 44, 55 (1991). In the trial court\u2019s discretion, any matters appearing in the public record may be inquired into, including the court, date, nature of the offense, and sentence received. Enoch, 146 Ill. 2d at 55. Care must be taken, however, to delete irrelevant and prejudicial surplusage such as the details of the nature of the crime of which the witness was convicted. See People v. Dudley, 217 Ill. App. 3d 230, 232 (1991). If the details appearing on the documents necessary to authenticate a defendant\u2019s prior convictions are unfairly prejudicial, their admission might constitute an abuse of the trial court\u2019s discretion. People v. Johnson, 173 Ill. App. 3d 998, 1012-13 (1988). We fail to see how the trial court could have concluded, in the exercise of its discretion, that Zuniga\u2019s impeachment should include informing the jury that she was convicted of being the getaway driver in this incident.\nA prosecutor may impeach the testimony of a former codefendant or accomplice by informing the jury that the codefendant or accomplice has been convicted of a crime previously. See Sullivan, 72 Ill. 2d at 42. This is so even in a situation where the facts and circumstances of the impeaching offense are the same as those that give rise to the charges for which defendant is on trial. In this situation, however, even though the impeaching offense may be designated by name (here, first-degree murder), it cannot be identified as having any connection to the charges pending against the accused (in this case, that the conviction was the result of the witness acting as the getaway driver in the same incident).\nAccordingly, we conclude that had Zuniga been called by defendant, the State may have been able to impeach her with her prior conviction of first-degree murder, if the Montgomery balancing test was met, but it would have been improper to disclose to the jury that the prior first-degree murder conviction was for this murder. The State\u2019s comment during its opening statement that Zuniga \u201chas been convicted of being the get-a-way [sic] driver of this homicide\u201d was therefore improper.\nHaving determined that the prosecutor\u2019s remarks were improper, we now turn to the State\u2019s contention that the prosecutor acted in good faith. The prosecutor may have had a good-faith basis to believe that defendant would call Zuniga as an exculpatory witness, but he was not entitled to assume that he would be allowed to impeach Zuniga with her prior murder conviction, as he had not obtained a determination from the trial court that the Montgomery requirements were satisfied and he did not have a good-faith basis to believe that he could tell the jury that Zuniga was convicted as the getaway driver in this incident. The prosecutor should have known that he could not disclose such information even if permitted to impeach Zuniga with her prior conviction. See Stover, 89 Ill. 2d at 195.\nThe prosecutor did not have a good-faith basis to believe that the length of Zuniga\u2019s sentence would be a component of any impeachment by prior conviction. The trial court may properly preclude an inquiry about the specific sentences of an accomplice when such disclosure would reveal the possible sentence facing defendant which is irrelevant to the jury. Brewer, 245 Ill. App. 3d at 892. Although it is within the discretion of the trial court whether the impeachment should include the sentence received (Enoch, 146 Ill. 2d at 55), we fail to see how the sentence received by Zuniga would have been probative of her credibility.\nMoreover, during his opening statement the prosecutor made the second improper remark after being put on notice that his first remark regarding Zuniga was improper. The trial court sustained an objection to the prosecutor\u2019s reference to Zuniga\u2019s sentence and instructed the jury that opening statements are not evidence. Immediately thereafter, rather than carefully measuring any further observations about Zuniga, the prosecutor announced to the jury that Zuniga was convicted of being the getaway driver of this homicide, a statement that was even more egregious than the earlier comment regarding the sentence. Accordingly, we reject the State\u2019s contention that the prosecutor made the remarks in question in good faith.\nThe State argues that if the prosecutor\u2019s comment during opening statement was error we should find it to be harmless because defendant was not prejudiced due to the trial court\u2019s sustaining of defendant\u2019s objection and its instruction to the jury that opening statements are not evidence. We disagree.\nDefendant suffers substantial prejudice due to an improper remark made by the prosecutor in opening statement where the remark was a material factor in the conviction or where the jury might have reached a different verdict had the prosecutor not made the remark. People v. Flax, 255 Ill. App. 3d 103, 109 (1993).\nWe initially note that before opening statements the trial court told the jury that opening statements are not evidence. Also, the jury received a written instruction indicating that opening statements are not evidence and that any statement made that is not based on the evidence should be disregarded (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (3d ed. 1992)). However, giving this instruction does not perfunctorily cure every improper statement; rather, it is a factor to be considered in determining prejudice to defendant. Flax, 255 Ill. App. 3d at 109.\nWhile the trial court did sustain defendant\u2019s objection to the State\u2019s initial improper comment that \u201cDiane [sic] Zuniga is going to testify, she is currently in prison serving a twenty year sentence,\u201d it did so at a sidebar outside the hearing of the jury and then merely told the jury \u201cwhat the attorneys say in opening statements is not evidence.\u201d Thereafter, the prosecutor continued by saying, \u201cshe has been convicted of being the get-a-way [sic] driver of this homicide.\u201d Again at sidebar, the trial court sustained defendant\u2019s objection and admonished the State not to comment on Zuniga further, but it did not say anything to the jury even though this remark was more egregious than the first. At no time during this exchange of objections and arguments was the jury admonished to disregard either of the prosecutor\u2019s improper references to Zuniga. All the jury heard from the trial court was one routine admonition that opening statements are not evidence, and this only after the less serious remark.\nIn this case, defendant suffered prejudice because his guilt may have been prejudged according to accomplice Zuniga\u2019s fate. This is the prejudice that the rule in Sullivan is designed to prevent. See Sullivan, 72 Ill. 2d at 42.\nAlso, defendant\u2019s attorney asserted, not unreasonably, that Zuniga, who had given exculpatory testimony at defendant\u2019s first trial, was tainted by the prosecutor\u2019s opening remarks to such a degree that he was unable to use her as a defense witness. In this case, we believe that the lack of Zuniga\u2019s exculpatory testimony could have been a material factor leading to defendant\u2019s conviction, thus further prejudicing him.\nIn light of the closely balanced evidence in this case, we conclude that the result of this trial might have been different absent the State\u2019s improper remarks during its opening statement.\nFinally, in considering all the evidence presented at trial, we find the State presented sufficient evidence of defendant\u2019s guilt to protect defendant\u2019s constitutional right against double jeopardy. See People v. Taylor, 76 Ill. 2d 289, 309-10 (1979). This determination is not binding on retrial, and we do not express an opinion concerning defendant\u2019s guilt.\nIII. CONCLUSION\nFor the reasons stated, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nHUTCHINSON, EJ., and BYRNE, J., concur.", "type": "majority", "author": "JUSTICE KAPALA" } ], "attorneys": [ "G. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Gunta Z. Ha-dac, of Grayslake, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS ARROYO, Defendant-Appellant.\nSecond District\nNo. 2\u201400\u20140498\nOpinion filed April 8, 2002.\nG. Joseph Weller and Bruce Kirkham, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Gunta Z. Ha-dac, of Grayslake, for the People." }, "file_name": "0861-01", "first_page_order": 879, "last_page_order": 896 }