{ "id": 5769084, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR CORTEZ, Defendant-Appellant", "name_abbreviation": "People v. Cortez", "decision_date": "2010-06-22", "docket_number": "No. 1\u201407\u20143245", "first_page": "468", "last_page": "475", "citations": [ { "type": "official", "cite": "402 Ill. App. 3d 468" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "225 Ill. 2d 246", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705152 ], "year": 2007, "pin_cites": [ { "page": "302", "parenthetical": "Crawford violations are subject to a harmless-error analysis" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0246-01" ] }, { "cite": "129 S. Ct. 2538", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "378 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4275448 ], "year": 2007, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/378/0041-01" ] }, { "cite": "391 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4285573 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/ill-app-3d/391/0161-01" ] }, { "cite": "547 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275498 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "830" }, { "page": "242" }, { "page": "2278" } ], "opinion_index": 0, "case_paths": [ "/us/547/0813-01" ] }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 26, "year": 2009, "pin_cites": [ { "page": "308" }, { "page": "320" }, { "page": "2531" }, { "page": "309" }, { "page": "320" }, { "page": "2531" }, { "page": "310-11" }, { "page": "321" }, { "page": "2532" }, { "page": "311" }, { "page": "322" }, { "page": "2532" }, { "page": "311" }, { "page": "321-22" }, { "page": "2532" }, { "page": "321" }, { "page": "328" }, { "page": "2538" }, { "page": "321-24" }, { "page": "328-30" }, { "page": "2538-40" }, { "page": "321-24" }, { "page": "328-29" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "287 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520940 ], "year": 1997, "pin_cites": [ { "page": "880" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0878-01" ] }, { "cite": "208 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2462898 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "217" }, { "page": "217" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0203-01" ] }, { "cite": "19 Ill. 2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743118 ], "year": 1960, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0310-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 15, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "56" }, { "page": "195-96" }, { "page": "1367", "parenthetical": "business records are, and historically have been, nontestimonial" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 811, "char_count": 17713, "ocr_confidence": 0.756, "pagerank": { "raw": 5.075442093142288e-08, "percentile": 0.3200230978717292 }, "sha256": "e313b0a9bf62ce2dfaa1a9af55cd7664619c4f8555234f3611de100581d7f2ec", "simhash": "1:6ab8e70a5a0ea451", "word_count": 2883 }, "last_updated": "2023-07-14T19:46:34.233681+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. HECTOR CORTEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court:\nDefendant appeals from his conviction for first degree murder and argues that his sixth amendment right to confront witnesses was violated. For the following reasons, we affirm defendant\u2019s conviction.\nFACTS\nThe dead body of Joshua Siguenza, \u201cTun Tun,\u201d was found in Honan Park in the early morning of July 26, 2002. Defendant was prosecuted for three counts of murder in relation to Tun Tun\u2019s death.\nChicago police officer Jeremy Gomez testified that he was the first to arrive on the scene. He and his partner determined that the victim was dead and waited for the evidence technician. Officer Gomez testified that Honan Park was known turf of the Lawrence and Kedzie faction of the Latin Kings street gang.\nMarie \u201cVicki\u201d Adame and her sister Vilma, \u201cVeronica,\u201d testified for the State. Both testified that at the time of the shooting, they were associated with the Latin Kings. On July 25, 2002, they went to the liquor store with Ruby Castillo and purchased liquor. They later met up with Gordo and Tun Tun. They walked to Honan Park. While they were sitting at a picnic table, Cucuy (Antonio Martinez) and Tetoz (defendant) approached. They got up to walk away. Vicki saw defendant was twirling a gun around. As she walked away, she heard the men arguing and then heard gunshots. She turned and saw sparks near defendant. She heard four or five shots as she ran away. Veronica testified that she did not see defendant with a gun but saw a white T-shirt wrapped around his right hand. When she heard a gunshot, she turned and saw defendant standing on the picnic table, with Martinez beside him, and Tun Tun under the table. Veronica did not see sparks but did hear four or five more shots.\nSeveral days later, Vicki received a call from defendant, who told her to keep the incident to herself. Neither Vicki nor Veronica went to the police to report what they saw. Both were later picked up by police and taken to the police station. There, both Vicki and Veronica identified photographs of defendant and Martinez.\nPaulscha Joseph, also know as \u201cLittle Smash,\u201d testified that he was a former Latin King and became a government informant following an arrest. On October 8, 2002, Joseph met with several high-ranking members of the Latin Kings, including Antonio Martinez, at a restaurant. Joseph was assigned to dispose of two guns for the gang, one of which was the murder weapon in this case.\nOn October 15, 2002, Joseph went to Martinez\u2019s uncle\u2019s house, where Martinez handed over the gun used in this case. In a recorded conversation published to the jury, Joseph asked Martinez who was shot with the gun. Martinez responded, \u201cTun Tun.\u201d Joseph asked Martinez if he was the one who \u201csmoked\u201d him and Martinez responded \u201cYeah.\u201d When Joseph asked why, Martinez responded that he \u201chad problems with this motherfucker.\u201d Joseph left with the gun and gave it to federal agents.\nOn October 17, 2002, Joseph drove defendant home from a gang meeting. During the ride, the conversation turned to Tun Tun\u2019s shooting. Joseph recorded the conversation, which was subsequently played for the jury. Joseph asked defendant who \u201cdid it\u201d and defendant replied \u201cme, bro\u201d because Tun Tun was \u201ctalkin shit.\u201d Joseph asked how many times defendant shot Tun Tun and defendant responded \u201cfive,\u201d not six, shots. Joseph asked defendant \u201c[Y]ou shot him all five times?\u201d and defendant replied, \u201c[Y]eah.\u201d Defendant then indicated that he \u201cleft him in the park.\u201d Shortly after this conversation, defendant and Martinez were arrested. Martinez was charged as a codefendant in this case with obstruction of justice relating to the gun.\nThe parties stipulated to a portion of a handwritten statement Martinez made to Assistant State\u2019s Attorney Hitt on November 3, 2002. In this statement, Martinez explained that when Joseph asked who killed Tun Tun, Martinez only told Joseph that he killed Tun Tun because he wanted to be the \u201cbig man\u201d and to be \u201crespected\u201d and \u201cfeared\u201d by Joseph.\nThe parties stipulated to the admission of the autopsy photographs and the foundation for three bullets that the medical examiner would testify \u201cthat he recovered three bullets from the body of Joshua Siguenza during the examination.\u201d Detective Graf later testified that a forensic scientist specializing in firearm identification determined that the bullets recovered from the victim\u2019s body were fired from the gun recovered from Martinez. In addition, the autopsy report, including a toxicology report on the victim, was admitted over defendant\u2019s objection.\nDefendant presented two stipulations. First, the parties stipulated that police officers would testify that Vicki stated that the three girls met with Gordo on the way to the liquor store. The second stipulation stated that Veronica related in her subsequent handwritten statement that Gordo and Tun Tun were smoking \u201cweed\u201d at the picnic table.\nAfter hearing all of the evidence, the jury found defendant guilty of first degree murder while personally discharging a firearm. Defendant was sentenced to 45 years\u2019 imprisonment. It is from this conviction that defendant now appeals.\nANALYSIS\nDefendant first contends that his right to confrontation was violated when Antonio Martinez\u2019s out-of-court testimonial statements were admitted at trial. Specifically, defendant contends that pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), it was improper for the trial court to allow the State to introduce Martinez\u2019s handwritten \u201crepudiation\u201d of his prior confession without requiring Martinez to take the stand.\nPrior to trial, defendant filed a motion in limine to allow Joseph to testify to the hearsay admission Martinez made to him as a statement against penal interest. According to the motion, Joseph collected a gun from Martinez and asked him, \u201cWho got shot with this?\u201d Martinez replied, \u201cTun Tun.\u201d Joseph asked, \u201cYou shot Tun Tun?\u201d Martinez responded, \u201cYeah.\u201d The court granted the motion, finding that it was satisfied that the statement \u201cwas made on a circumstance that provides considerable assurances of reliability.\u201d Defense counsel indicated that he did not intend to call Martinez, even though he would be available to testify, because he may \u201cdisavow the statement\u201d and \u201cpoint to my guy as the shooter.\u201d\nLater, when the attorneys were in chambers, the court announced that it had had another opportunity to look at the statement Martinez made to Joseph and might reconsider its position on the motion in limine. Specifically, the court indicated it was concerned whether the term \u201csmoked\u201d would be construed as synonymous with the word \u201cshot.\u201d In discussing whether Martinez intended the word \u201csmoked\u201d to mean \u201ckilled,\u201d the State offered that Martinez gave a handwritten statement to Assistant State\u2019s Attorney (ASA) Hitt on November 3, 2002, wherein Martinez stated that he told Joseph that he killed Tun Tun only because he wanted to be the big man, to be respected and feared. After further discussion, the State requested that Martinez\u2019s handwritten statement to ASA Hitt be admitted to explain why he made the earlier admission to Joseph. Specifically, the State requested to admit a portion of the handwritten statement of Antonio Martinez that reads:\n\u201cAntonio Martinez states that on or about October 11, 2002, Smash did come by his house. He states that Smash came into his apartment to get the gun. He states he gave the gun to Smash. He states Smash asked him, \u2018who go[t] smoked with the gun?\u2019 He states he told Smash that Tune-Tune [sic] got killed with the gun. He states Smash asked him who killed Tune-Tune [sic]? He states he told Smash that he killed Tune-Tune [sic]. He states he told Smash he killed Tune-Tune [sic] only because he wanted to be the big man, and he wanted to be respected and feared by Smash.\u201d\nDefense counsel asked for some time to think about the State\u2019s request. Defense counsel then asked the court, \u201cIs the Court advising me that if I don\u2019t agree to that entire portion that counsel read, that the Court will not allow that as evidence?\u201d The court responded: \u201cWell, Counsel, I think I just need to rule \u2014 decide my ruling on the statement. Without that either, I don\u2019t think that\u2019s necessary, but if you all have an agreement to the contrary, I\u2019ll let you all work that out.\u201d Defense counsel then responded \u201cI don\u2019t have an objection\u201d and that he agreed to \u201cthat paragraph.\u201d Defense counsel then agreed to stipulate to the admission of Martinez\u2019s handwritten statement.\nDefendant now claims that the admission of Martinez\u2019s handwritten \u201crepudiation\u201d violated his sixth amendment right to confrontation. U.S. Const., amend. VI. In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Supreme Court held that the confrontation clause barred out-of-court testimonial statements unless the declarant was unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.\nThe State argues that we need not reach the merits of defendant\u2019s claim because defendant has waived this issue where he stipulated to the admission of Martinez\u2019s prior statement to ASA Hitt. A criminal defendant may waive, by stipulation, the need to prove all or part of the case that the State has brought against him. People v. Polk, 19 Ill. 2d 310, 315 (1960). \u201c[D]Jefense counsel may waive a defendant\u2019s right of confrontation as long as the defendant does not object and the decision to stipulate is a matter of trial tactics and strategy.\u201d People v. Campbell, 208 Ill. 2d 203, 217 (2003). A defendant is precluded from attacking or opposing any facts to which he has previously stipulated. People v. Gibson, 287 Ill. App. 3d 878, 880 (1997).\nThe State argues that defendant did not object and that counsel\u2019s decision to waive defendant\u2019s right to confrontation was a matter of trial strategy where the court indicated its reluctance to admit Martinez\u2019s statement to Joseph without admitting Martinez\u2019s statement to ASA Hitt.\nDefendant does not dispute that he did not object to counsel\u2019s waiver of his right of confrontation. Defendant argues vehemently, however, that counsel\u2019s decision to waive his right to confront Martinez was not sound trial strategy. Interestingly, defendant does not challenge counsel\u2019s effectiveness under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Instead, as appellate counsel indicated at oral argument in this case, defendant argues that counsel\u2019s actions need only be considered under Campbell, 208 Ill. 2d at 217. Campbell requires that counsel\u2019s decision to waive defendant\u2019s right of confrontation be \u201clegitimate trial tactics or prudent trial strategy.\u201d Campbell, 208 Ill. 2d at 221.\nIt is well established that we cannot \u201cget into counsel\u2019s head\u201d to determine why he made the decisions he made in determining his strategy. However, we note that counsel told the trial court that his defense was that Martinez shot Tun Tun. Additionally, defense counsel indicated to the court that he had no intention of calling Martinez because he was afraid Martinez would \u201cdisavow the statement\u201d and \u201cpoint to my guy as the shooter.\u201d Clearly counsel had a strategy and having Martinez testify, for whatever reason, did not coincide with that strategy. Perhaps Martinez\u2019s written statement would do less damage to defendant\u2019s case than Martinez testifying from the stand. We cannot say that counsel\u2019s decision to stipulate to Martinez\u2019s statement was anything other than sound trial strategy. Consequently, we cannot consider defendant\u2019s claim on its merits.\nDefendant next argues that the trial court\u2019s decision to allow the autopsy report to be admitted over defense counsel\u2019s objection, without the State producing its author for cross-examination, violated his right to confront the witnesses against him. U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a78; Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).\nIn support, defendant cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009). In Melendez-Diaz, the defendant was charged with distributing and trafficking cocaine. To prove the substance was cocaine, the prosecution submitted three \u201ccertificates of analysis\u201d that showed the weight of the seized bags and that the substance found therein was cocaine. The certificates were sworn to before a notary public as required by Massachusetts law. Melendez-Diaz, 557 U.S. at 308, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. Defendant objected to the admission of these certificates at trial, but the court overruled the objection because Massachusetts law allows the use of these certificates as prima facie evidence of the analyzed substance\u2019s weight and composition. A jury found the defendant guilty. Defendant challenged his conviction on appeal and argued that the admission of the certificates violated his sixth amendment right. The appeals court rejected his claim. The state supreme court declined to hear his case. Melendez-Diaz, 557 U.S. at 309, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531.\nThe United States Supreme Court found the certificates, which were \u201cquite plainly affidavits,\u201d to be \u201cfunctionally identical to live, in-court testimony, doing \u2018precisely what a witness does on direct examination.\u2019 \u201d Melendez-Diaz, 557 U.S. at 310-11, 174 L. Ed. 2d at 321, 129 S. Ct. at 2532, quoting Davis v. Washington, 547 U.S. 813, 830, 165 L. Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). Because the certificates were considered testimonial under Crawford, the prosecution should have been required to call the analysts at trial, absent a showing that the analysts were unavailable to testify at trial and the defendant had a prior opportunity to cross-examine them. Melendez-Diaz, 557 U.S. at 311, 174 L. Ed. 2d at 322, 129 S. Ct. at 2532. Accordingly, the admission of the certificates as evidence against the defendant was error. Melendez-Diaz, 557 U.S. at 311, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532.\nDefendant suggests that the autopsy report admitted in this case is similar to the certificates admitted in Melendez-Diaz. However, defendant overlooks the fact that this court has previously held that autopsy reports are business records and do not implicate Crawford. See People v. Leach, 391 Ill. App. 3d 161 (2009); People v. Moore, 378 Ill. App. 3d 41, 50 (2007); see also Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 195-96, 124 S. Ct. at 1367 (business records are, and historically have been, nontestimonial). While both Leach and Moore predate Melendez-Diaz, we are nevertheless unpersuaded that Melendez-Diaz upsets our prior holdings. The Melendez-Diaz Court specifically noted that the analysts\u2019 \u201caffidavits\u201d did not qualify as traditional or official business records. Melendez-Diaz, 557 U.S. at 321, 174 L. Ed. 2d at 328, 129 S. Ct. at 2538.\nWe acknowledge that, despite its finding that the affidavits did not qualify as traditional business records, the Melendez-Diaz court did note that even if the affidavits did qualify as traditional or official business records, \u201ctheir authors would be subject to confrontation nonetheless\u201d because they were \u201cprepared specifically for use at petitioner\u2019s trial\u201d and were \u201ctestimony against petitioner.\u201d Melendez-Diaz, 557 U.S. at 321-24, 174 L. Ed. 2d at 328-30, 129 S. Ct. at 2538-40. Despite defendant\u2019s argument to the contrary, the facts of this case do not support a finding that the autopsy report is subject to Crawford.\nThe certificates at issue in Melendez-Diaz were prepared and admitted solely to establish an element of the offense for which defendant was charged and standing trial, i.e., whether the items seized from the defendant were in fact cocaine, and if so, how much cocaine was present. Those facts went directly to the defendant\u2019s guilt or innocence. Conversely, the autopsy report in this case was created for the \u201cadministration of [the medical examiner\u2019s] affairs.\u201d Melendez-Diaz, 557 U.S. at 321-24, 174 L. Ed. 2d at 328-29, 129 S. Ct. 2538-40. Furthermore, the autopsy report was not admitted to establish or prove some fact at trial and did not lend itself to establishing defendant\u2019s guilt or innocence. Defendant\u2019s theory at trial was that Martinez shot and killed the victim. The cause and manner of the victim\u2019s death were not contested.\nFurthermore, even if the admission of the autopsy report without the testimony of the medical examiner was error, it was harmless beyond a reasonable doubt. People v. Stechly, 225 Ill. 2d 246, 302 (2007) (Crawford violations are subject to a harmless-error analysis). Again, defendant did not contest that Tun Tun was shot and killed. Defendant only claimed that he was not the shooter. Despite defendant\u2019s assertions, Vicki testified that defendant had a gun in his hand prior to the shooting. In addition, defendant confessed to Joseph that he shot and killed Tun Tun. Therefore, any possible error did not contribute to defendant\u2019s conviction.\nBased on the foregoing, the judgment of the trial court is affirmed.\nAffirmed.\nCUNNINGHAM, EJ., and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, and Shawn O\u2019Toole, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette N. Collins, and Susan R. Schierl Sullivan, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR CORTEZ, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201407\u20143245\nOpinion filed June 22, 2010.\nRehearing denied July 19, 2010.\nMichael J. Pelletier, Patricia Unsinn, and Shawn O\u2019Toole, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette N. Collins, and Susan R. Schierl Sullivan, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0468-01", "first_page_order": 486, "last_page_order": 493 }