People v. Lechuga , 2023 IL App (2d) 220071-U ( 2023 )

2023 IL App (2d) 220071-UNo. 2-22-0071
Order filed February 15, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CF-419
)
JESUS LECHUGA, ) Honorable
) Alice C. Tracy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: There was sufficient evidence to prove defendant guilty beyond a reasonable doubt
of first-degree murder. The trial court’s failure to fully comply with Zehr did not
result in reversible error because the evidence at trial was not closely balanced.
Defendant failed to show plain error or ineffective assistance of counsel as a result
of the prosecutor’s alleged improper comments during closing argument.
Therefore, we affirm.
¶2 Following a jury trial, defendant, Jesus Lechuga, was convicted of first-degree murder (720
ILCS 5/9-1 (West 2004)) and sentenced to 55 years’ imprisonment. On appeal, he argues that (1)
he was not proven guilty beyond a reasonable doubt; (2) he is entitled to a new trial because the
trial court failed to question four potential jurors on the fourth Zehr principle, and the trial evidence
2023 IL App (2d) 220071-Uwas closely balanced; and (3) the prosecution made improper comments during closing argument.
We affirm.
¶3 I. BACKGROUND
¶4 On February 17, 2010, defendant was charged by indictment with two counts of first-
degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2004)) for allegedly shooting Jose Covarrubias in
the head on March 1, 2004.
¶5 Due to issues with discovery, pretrial litigation, and securing the presence of witnesses,
defendant’s jury trial began many years later, on July 12, 2021. Sergeant Jorge Gonzalez of the
Carpentersville Police Department was accepted as an expert in street gangs and gang member
identification. He testified that in 2004, four gangs were the most active in Carpentersville: the
Latin Kings, Maniac Latin Disciples, Vice Lords, and Gangster Disciples. The Latin Kings and
the Maniac Latin Disciples were in a “constant battle *** over anything from the drug trade to
territory and recruitment.” Gonzalez testified that the gangs did not necessarily need a specific
reason to shoot each other, but they tended to do so out of retaliation. According to Gonzalez, the
Maniac Latin Disciples used the initials MLD and certain symbols, including a pitchfork.
¶6 Margarita Covarrubias, the victim’s sister, provided the following testimony. On February
29, 2004, she lived at 948 Chippewa Circle in Carpentersville, which was located near a White
Hen Pantry. Margarita lived in the house with various relatives, including her brother, who was 23
years old. Jose was part of the Maniac Latin Disciples gang and had the nickname “Buddha.” Jose
had a dog that slept with him, and Jose’s friends would often come to his bedroom window. She
did not know if he sold drugs. On the day in question, Jose was hanging out with his friends in the
house. Later, at about 11:45 p.m., Margarita was getting ready for bed and Jose was going in and
out of his bedroom, which was next to her room. Margarita could not remember all of the details
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2023 IL App (2d) 220071-Uof that night because she subsequently had a brain lesion that affected her memory. Margarita
remembered that when she was in bed, she heard a male come up to Jose’s window and say one
sentence, and then there was a loud noise. She ran to Jose’s room and saw that he had a gunshot
wound to the head. Margarita called an ambulance and gave Jose CPR.
¶7 Officer Jeff Elliot testified that he was dispatched to the scene and arrived around 12:11
a.m. It was “hectic” at the house with relatives “running around” and “not knowing what to do.”
He saw Jose lying on his back with a pool of blood underneath him, with possible brain matter in
the blood. Jose had a bullet wound near his left eye, and his feet were towards a bedroom window
that was broken and had a bullet hole through the frame. The blinds on the window were raised
up. The bedroom had an entertainment center with a television, but Elliot did not recall whether
he heard the television. When the paramedics wheeled Jose out of the room, Elliot heard a gurgle
and what seemed to be a last gasp of air. Elliot secured the bedroom with crime scene tape. Before
Elliot left, approximately 10 more friends and family came to the house.
¶8 According to additional evidence presented by the State, there were two windows outside
of Jose’s bedroom, on the side of the house, about 4 to 4½ feet off the ground. One of the windows
had broken glass and a bullet hole in the frame. Both windows had footwear impressions and
empty beer bottles, bottle caps, and cigarette butts underneath. Cigarette butts and bottle caps were
sent to the crime lab, but there were no results. The police did not locate any shell casings in the
backyard or surrounding areas, but some firearms, like revolvers, do not eject shell casings. A
photograph of Jose’s bedroom taken by an officer dispatched to the scene showed the television
turned on. A backpack with two firearms was on Jose’s bed. There were no latent fingerprints
suitable for comparison on the broken window. Two bullet fragments were removed from Jose’s
head, which came from either a .38 or .357 caliber gun. This information was not released to the
-3-
2023 IL App (2d) 220071-Upublic. According to a firearms expert, it was possible to fire a .38 caliber bullet from a .357 caliber
gun, but most .38 caliber guns could not fire .357 bullets. Jose had tattoos of a pitchfork and the
letters MLD on his chest.
¶9 On March 11, 2004, Detective Tim Bosshart and other officers went to execute a search
warrant on defendant’s residence. As Bosshart went to take a position at the back of the home, an
officer radioed that someone was running out the back door. Bosshart ran to the back, and
defendant stopped and put his hands up. Defendant was wearing only one slipper. He did not have
a weapon on him, and no .357 gun or ammunition was found in the house.
¶ 10 Later that day, Gonzalez and and Detective John Galason interviewed defendant at the
Carpentersville Police Department. Defendant admitted to being an active Latin King gang
member and to owning a “three-five” pistol, which Galason took to mean a .357 revolver handgun.
Defendant said he had it “tucked” in his waistband that day and “pitched it” after running out the
back door. Defendant said he had the gun for a few months, including the night Jose was shot, but
would not say where he got the gun.
¶ 11 James Martin provided the following testimony. He met defendant through defendant’s
brother, Gilberto, who used to sell Martin marijuana. Martin was “associated” with the Latin
Kings, but defendant was a “member” and went by the nicknames Jesse and Cypress. During the
evening of the shooting, Martin was at the Lechuga residence where defendant and Gilberto lived
with their parents. Martin was there with his girlfriend, Renee Gutierrez, and was drinking and
using cocaine and marijuana. Martin was a cocaine addict at the time but could remember most
conversations. Defendant was near the garage area with his friends. Defendant left and came back
an hour later, “pretty like hyped up or like shaken,” and said that everyone had to leave. He had a
big chrome pistol with a wood or black handle on his belt. Martin had seen defendant with the gun
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2023 IL App (2d) 220071-Uin his possession more than once in the prior year. Defendant referred to the gun as “Clint
Eastwood or Dirty Harry” because it was big and “like a gun used in the movies.” Martin “was not
a gun person” and did not know the gun’s caliber but believed that it was a .357. Martin testified
on cross-examination that he did not remember if he saw defendant leave the house and did not
know with whom defendant left.
¶ 12 In November 2004, Martin became better friends with defendant. When they were at the
Lechuga residence in late 2004 or early 2005, defendant told Martin that he had gone to Jose’s
house, knocked on the window, and when Jose looked through the window, defendant shot Jose
with Dirty Harry. Defendant subsequently said more than five times in Martin’s presence that he
had shot Jose. Martin agreed that he testified in front of the grand jury that there were as many as
eight conversations. The conversations occurred in and around defendant’s house, in a car, and at
Martin’s ex-wife’s house. Defendant said that Jose lived behind the White Hen in Carpentersville.
He said in conversations that he shot Jose in the head, shot him in the face, and “[b]lew his head
off” because of a “general dispute” between the rival gangs. Defendant’s demeanor during the
conversations ranged from boasting to sad.
¶ 13 The first time Martin came forward to the police with the information was in April 2005,
when Martin was in jail. Martin was later equipped with a wire to get a recorded conversation with
defendant admitting that he shot Jose, but Martin was not able to. Martin had received some
benefits from the Carpentersville Police Department and the Kane County State’s Attorney’s
Office, in that he was not charged with possessing one gram of cannabis, and outstanding fines
and fees were cleared.
¶ 14 Gutierrez, Martin’s former girlfriend, testified that he often lied when they were dating.
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2023 IL App (2d) 220071-U¶ 15 Richard Olvera testified as follows. He was a founding member of the Carpentersville Latin
Kings. Defendant became a Latin King around 1997. In 2004, the Maniac Latin Disciples were
rivals of the Latin Kings. Olvera heard about Jose’s death but did not recall discussing it with
defendant. He acknowledged testifying in front of the grand jury on June 15, 2007, and his
recollection was refreshed with the transcript. About one week after the shooting, defendant said
that he and Jason Yates decided to “go for a ride” and “look for problems behind the White Hen.”
They drove by Jose’s house and saw a light on in Jose’s room. Yates parked further down the
street. Defendant went to Jose’s window and knocked on it, and when Jose came to the window,
defendant shot him once in the head with a .357 gun. He then “took off running” to the car.
Defendant told Olvera in at least 10 conversations that he shot Jose. Olvera admitted that from
2004 to 2007, Olvera was a drug addict and used at least 1.5 grams of cocaine per day, which
impacted his memory.
¶ 16 Olvera further admitted to testifying to the following in front of the grand jury. He and
defendant were always drinking and doing drugs during their conversations. Defendant had
previously walked around the neighborhood behind White Hen with a gun to “look for problems,”
and “plan his escape routes if he was going to do anything.” Sometime after admitting to shooting
Jose, defendant told Olvera that the police had searched his house, and he still had the murder
weapon there. He said that he had hidden it under a piece of wood in his backyard and that the
police did not find it.
¶ 17 Olvera agreed that he did not tell anyone about the conversations until 2007. In late April
2007, he was arrested on federal charges for a major drug conspiracy. At the federal building, he
met with either Gonzalez or Detective Todd Shaver and agreed to testify against defendant. He
was then released from federal custody. Olvera faced federal charges that could result in up to 40
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2023 IL App (2d) 220071-Uyears’ imprisonment. Shaver picked Olvera up from his house and drove him to the courthouse to
testify in front of the grand jury. The ride was about 40 to 45 minutes, and they talked about the
case. Shaver “refresh[ed] [Olvera’s] memory of what was going on.” After providing the grand
jury testimony, Olvera was sentenced to 27 or 28 months’ imprisonment and got out in less than
two years because he participated in drug treatment. Also, Olvera was on probation in Kane County
when he faced federal charges, and as a result of his cooperation, the probation violation was
dismissed.
¶ 18 At trial, Olvera testified that he did not recall defendant telling him that he shot Jose. Olvera
heard most of what he testified to in front of the grand jury from hanging out with gang members.
Olvera used the information to his benefit so he would not have to spend 40 years in prison. He
never saw defendant with a gun. After defendant was charged in 2010, Olvera received a final
payment of $500 from the federal government to relocate his family. Olvera denied that he received
the money because of death threats from the Latin Kings.
¶ 19 The parties stipulated that the FBI paid Olvera $3500 so that he could relocate his family
based upon threats he allegedly received.
¶ 20 Liria Torres testified that in March 2004, she was about 18 years old and lived in a house
in Carpentersville with her older brother, Antonio Torres, who was in his 20s at the time. He was
a Latin King and went by the nickname “Goofy.” She “vaguely” remembered testifying in front of
the grand jury that Antonio was the “Inca” of the gang. She recalled previously testifying that
Antonio had a police scanner and would listen to it every day, especially at night. Liria denied
knowing a person named “Buddha.” She knew Margarita Covarrubias because Margarita had a
child with one of Liria’s brothers. Liria knew defendant for many years from her brother and other
friends, and she believed that he was a Latin King.
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2023 IL App (2d) 220071-U¶ 21 Liria did not recall testifying to the following in front of the grand jury. Around midnight
on March 1, 2004, there was a loud knock at the door, and Liria went to answer it. Defendant and
another man went up to Antonio’s room, and they talked about what Antonio had heard on the
police scanner. The men were comfortable with Liria’s presence in the room because of her
relationship to Antonio. Defendant said that he had walked around Jose’s house, went to Jose’s
window, and got the dog’s attention. Jose was watching a Britney Spears music video on television
and went to the window to see what the dog was doing. Liria did not remember if defendant said
he shot Jose in the head, or if she heard that on the police scanner. She did not see defendant with
a gun that night. Defendant and his associate left the house after the conversation, which lasted
about five minutes.
¶ 22 Liria testified that she was arrested on November 1, 2006, in relation to a federal drug
conspiracy and faced charges of 10 years to life imprisonment. Olvera, Antonio, and Christina
Corbin were charged with related activity. Liria had a 10-month-old daughter at the time. Her
grand jury testimony was not true, but rather she was trying to help herself. Liria entered a plea in
which she was sentenced to 42 months, though she ultimately received a sentence reduction
because she was a drug addict and participated in a drug program.
¶ 23 Corbin testified that she got to know defendant through another Latin King gang member
in the summer of 2002. She had seen him only at parties and was not friends with him. She later
met Antonio and started dating him in the spring of 2005. Antonio was an “Inca” or leader in the
Latin Kings. He would sometimes talk about gang members in front of Corbin. She knew
“Buddha”/Jose because she used to live by him and had hung out with him a few times. In April
or May 2005, she was in Antonio’s bedroom with Antonio, her sister, and others when defendant
entered. Antonio and defendant had a conversation in which defendant said that he had lifted Jose’s
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2023 IL App (2d) 220071-Uwindow, knocked on it because he knew that Jose was a drug dealer, and then shot Jose. Defendant
said that something had happened, that he was in a hurry, and that he had to change and leave.
Defendant took off a black hoody and changed into one of Antonio’s t-shirts. Corbin
acknowledged that defendant and Antonio were not the same size and that the conversation
happened over one year after Jose’s death.
¶ 24 Corbin did not tell anyone about the conversation until 2007, after she had been arrested in
relation to a federal drug conspiracy and was facing a sentence of up to 25 years for “conspiracy
with intent to sell 5 to 15 keys of cocaine.” Corbin was “looking for a benefit” and testified against
defendant. She never saw defendant with a gun and had never had a conversation with him. Corbin
was not a gang member but knew that gangs had a code of silence, which meant not speaking about
anything that happened, including murder.
¶ 25 Wayne Wilson provided the following testimony. In March 2004, he lived in
Carpentersville and had been friends with Antonio for a couple of years. They would hang out at
Antonio’s house every day doing drugs and drinking alcohol, which made Wilson’s memory from
the time “very hazy.” Antonio was Wilson’s drug supplier, and Antonio’s house was a “drug
house.” Wilson had heard about what had happened to Jose, who he believed was a Maniac Latin
Disciple, but did not know him. Wilson remembered Antonio talking about Jose more than any
other of his friends.
¶ 26 Wilson acknowledged testifying in front of the grand jury on June 15, 2007, that a few days
after the shooting, he was at Antonio’s house. Defendant later arrived and started talking to
Antonio. Defendant said that he tapped on Jose’s window, and when Jose came up, he shot him
using a “Coonan .357.”
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2023 IL App (2d) 220071-U¶ 27 In June 2007, Detective Shaver approached Wilson while he was in jail. Wilson testified
in front of the grand jury because he was pressured to and felt that he had no choice. Defendant
did not tell Wilson that he shot anyone, but rather Wilson heard Antonio talk about it with other
people at his house. Wilson did not know what a “Coonan” was but believed that he heard people
talk about a “canon.” Wilson testified that he did not lie to the grand jury but rather believed that
what he heard was the truth, but now that he was “clear headed” he “honestly [did not] know what
happened.”
¶ 28 Detective Shaver testified as follows. Martin admitted to being a Latin King gang member.
He obtained an authorization for an eavesdrop device for Martin, but Martin never wore the device
because “any attempts to get Mr. Martin with [defendant] did not occur.” Shaver spoke to Martin
on April 7, 2005, but Martin gave him “different” information on November 22, 2006.1
¶ 29 Shaver was dispatched to the scene after the shooting, and Jose’s family gave him the
names of possible suspects. Shaver spoke to Jose’s ex-girlfriend Christina Kamp, her brother
Christopher Kamp, who became a possible suspect, and Jose’s friend Eric Sanchez. Christina’s
boyfriend Joseph Czarney also became a suspect, and clothes belonging to him were tested for
gunshot residue and blood. Other suspects included “Sabo,” Fernando Rodriguez, and someone
with the last name Yates. Shaver called Yates, who was out of state, but did not pursue him further.
Shaver ruled out everyone as a suspect other than defendant.
¶ 30 During deliberations, the jury sent a note with six questions: what defendant’s height was,
why so much time elapsed between the grand jury and the trial; when and why did defendant
1
The trial court did not allow questioning about how the information was different, because
such a question would be beyond the scope of the direct examination.
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2023 IL App (2d) 220071-Ubecome a suspect; whether defendant’s footprint was compared to those at the crime scene, and
what was the probable cause for the search warrant. The parties agreed with the trial court’s
response that the jury was to render its verdict based on the evidence and instructions it already
received.
¶ 31 The jury found defendant guilty of first-degree murder. It further found that defendant
personally discharged a firearm that caused the death of another person.
¶ 32 Defendant filed a motion for a new trial on August 16, 2021, which the trial court denied
on March 2, 2022. The following day, it sentenced defendant to 30 years’ imprisonment for first-
degree murder, plus another 25 years’ imprisonment for personally discharging a firearm in the
commission of the murder. Defendant timely appealed.
¶ 33 II. ANALYSIS
¶ 34 A. Sufficiency of the Evidence
¶ 35 Defendant first argues that there was insufficient evidence to prove him guilty beyond a
reasonable doubt of Jose’s murder. When examining the sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261
(1985). The trier of fact has the responsibility to assess witnesses’ credibility, weigh their
testimony, resolve inconsistencies and conflicts in the evidence, and draw reasonable inferences
from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). We will not reverse a criminal
conviction based on insufficient evidence unless the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Murray, 2019
IL 123289, ¶ 19.
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2023 IL App (2d) 220071-U¶ 36 Defendant highlights that there was no physical evidence linking him to the crime and
argues that the only evidence implicating him was the testimony of the State’s witnesses, all of
whom had a motive to falsely implicate him because they were in police custody when they came
forward and received benefits from cooperating with authorities.
¶ 37 Defendant argues that Martin was the most untrustworthy witness due to his history of
lying. He notes that Martin initially testified that he saw defendant leave the house but then testified
that he did not recall whether he saw defendant leave. Defendant maintains that it was also contrary
for Martin to say that he was unfamiliar with guns but then claim that defendant had a .357
revolver, and that Martin also lied to Shaver about being a Latin King to bolster his credibility.
Defendant further contends that Martin was an unreliable witness because he was a drug addict
(see People v. Rivera, 2011 IL App (2d) 091060, ¶ 38 (testimony of habitual drug users is subject
to suspicion because they are notorious liars)), did not implicate defendant until Martin was in jail
in 2005, and gave different stories to Shaver. Defendant asserts that Martin’s agreement to wear
an eavesdropping device further decreased his credibility (see Lee v. United States, 343 U.S. 747,
757 (1952) (use of “false friends” or “any of the other betrayals which are ‘dirty business’ may
raise serious questions of credibility”)), and even then, he could not get a recorded conversation.
Defendant maintains that Martin admitted to continuing to receive benefits from the police and the
State’s Attorney’s office, which gave him an incentive to continue to falsely accuse defendant. See
People v. Williams, 65 Ill. 2d 258, 267 (1976) (“we have held that when it appears that a witness
has hopes of a reward from the prosecution, his testimony should not be accepted unless it carries
with it an absolute conviction of its truth”).
¶ 38 Defendant argues that Olvera was a founding member of the Carpentersville Latin Kings
and a drug addict, and though he was impeached with his grand jury testimony about what
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2023 IL App (2d) 220071-Udefendant allegedly told him, the testimony was based on conversations Olvera had with other
people rather than with defendant himself. Defendant argues that the testimony that defendant saw
Jose’s bedroom light on was not even consistent with the house’s layout, as Jose’s window was in
the rear of the house and not in street view. Defendant contends that Olvera’s grand jury testimony
was further undermined because Shaver “refresh[ed]” Olvera’s memory about the case on the drive
to the courthouse and because Olvera used rumors he heard to get a benefit in his federal case, a
dismissal of his probation violation charge in Kane County, and a payment of $3500 from the FBI
to relocate.
¶ 39 Regarding Liria, defendant argues that she was similarly facing significant federal drug
charges. Defendant points to Liria’s testimony that she testified in front of the grand jury to protect
herself and minimize her sentence. Defendant notes that Liria recanted her grand jury testimony.
He argues that her recantation is supported by the fact that her grand jury testimony also did not
match the crime scene, in that she had testified that defendant used Jose’s dog to lure him to the
bedroom window, but none of the officers who went to the scene testified that there was a dog
present or paw prints in the blood. Defendant argues that the fact that the television was on in the
bedroom when the police arrived does not necessarily corroborate that Jose was watching Britney
Spears when he was shot.
¶ 40 Defendant argues that Corbin’s testimony suffered from similar weaknesses. He notes that
she testified that the conversation she heard occurred over one year after the shooting in both her
and her sister’s presence. Defendant points out that Corbin came forward after she faced federal
drug conspiracy charges, and she admitted that she was looking for a benefit in exchange for
information against defendant. Defendant maintains that neither Corbin, Liria, nor Olvera ever saw
him with a gun or had a direct conversation with him about the shooting.
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2023 IL App (2d) 220071-U¶ 41 Defendant argues that Wilson was also incredible, in that his grand jury testimony was
based on rumors he had heard while drinking and doing drugs. Defendant notes that Wilson
testified at trial that he felt pressured to testify in front of the grand jury, and that defendant never
told him that he shot anyone.
¶ 42 Defendant argues that a detailed review of the evidence shows that the State’s case was
based on fabrications and street rumors originating from Antonio’s “drug house,” rather than facts.
Defendant argues that the State attempted to bolster the witnesses’ credibility by asserting that
they knew details about the shooting that only the offender would know, but that the assumption
is undermined by two crucial facts. First, despite the State’s conclusion that the murder weapon
was fired by a .357 caliber gun, the evidence showed that the bullet fragments were discharged
from either a .38 or .357 caliber gun. Second, the shooting’s details were common knowledge as
Antonio possessed a police scanner, the majority of witnesses were connected to Antonio, and
news of the shooting spread around his “drug house.” Also, Jose’s family knew certain details
about the shooting, and both Corbin and Liria had connections to his family. Further, many
civilians arrived at Jose’s house immediately after the shooting to console the family.
¶ 43 Defendant argues that the State failed to prove that he, and not someone else, committed
the offense beyond a reasonable doubt. Defendant argues that the evidence showed that Jose was
speaking to someone through the window prior to being shot, which is consistent with testimony
and photographs. Defendant argues that considering testimony that Jose’s friends would often
come to his bedroom window, the evidence strongly suggests that the offender was someone Jose
was familiar with rather than a rival gang member. Defendant argues that given the circumstances
of multiple active suspects, no eyewitnesses, no forensic evidence, and untrustworthy witnesses
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2023 IL App (2d) 220071-Uwho came forward only after their own freedom was in jeopardy, no reasonable trier of fact could
have found him guilty beyond a reasonable doubt.
¶ 44 We note that defendant contests only the identity element of the crime and not any other
elements of first-degree murder. We conclude that, viewing the evidence in the light most
favorable to the State, there was sufficient evidence that defendant was the shooter to prove him
guilty of the murder beyond a reasonable doubt.
¶ 45 Martin testified that he first became friends with defendant’s brother and then became
friends with defendant. Martin testified to being at defendant’s residence with others the night of
the shooting, when defendant came back “pretty like hyped up or like shaken” and said that
everyone had to leave. Defendant had a big chrome pistol on his belt that Martin had previously
seen in defendant’s possession, and Martin believed that it was a .357 caliber gun. Martin testified
that in late 2004 or early 2005, defendant told him more than five times that he went to Jose’s
house, knocked on the window, and when Jose looked through the window, defendant shot him
with the gun. Martin acknowledged testifying in front of the grand jury that defendant admitted
shooting Jose in as many as eight conversations. Defendant said that he shot Jose in the head, shot
him in the face, and “[b]lew his head off” because of a “general dispute” between the rival gangs.
The evidence was clear that defendant was a member of the Latin Kings gang while Jose was a
member of the Maniac Latin Disciples, and that the gangs were enemies. Martin testified that
defendant’s demeanor during the conversations ranged from boasting to sad.
¶ 46 Olvera testified to being a founding member of the Carpentersville Latin Kings. Olvera
testified in front of the grand jury that about a week after the shooting, defendant told Olvera that
he and Yates decided to “go for a ride” and “look for problems behind the White Hen.” They
stopped after seeing a light in Jose’s room, and defendant went to Jose’s window, knocked on it,
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2023 IL App (2d) 220071-Uand when Jose came to the window, defendant shot him once in the head with a .357 gun.
Defendant then ran to the car. Olvera testified in front of the grand jury that defendant told him
that he shot Jose in at least 10 conversations. Defendant also told Olvera that defendant still had
the murder weapon when the police searched his house, but he had hidden it under a piece of wood
in his backyard, and the police did not find it.
¶ 47 Liria testified that she was Antonio’s sister, and she recalled previously testifying that he
listened to a police scanner every day. Liria testified in front of the grand jury that defendant and
another man came to the house on March 1, 2004, at around midnight. Antonio had heard about
the shooting on the police scanner, and defendant said that he had walked over to Jose’s window
and gotten the attention of Jose’s dog. Jose was watching Britney Spears on television and went to
the window to see what was happening. Liria testified to the grand jury that she did not remember
if defendant said that he shot Jose in the head or if she heard this information on the police scanner.
Defendant and the other man then left the house.
¶ 48 Corbin testified that she was dating Antonio, who was a Latin Kings leader. In April or
May 2005, defendant had a conversation with Antonio in the presence of Corbin and others. He
said that he had lifted Jose’s window, knocked on it because he knew that Jose was a drug dealer,
and then shot Jose.
¶ 49 Wilson testified that he was friends with Antonio and would hang out with him every day
at Antonio’s house. Wilson testified in front of the grand jury that a few days after the shooting,
he was at Antonio’s house when defendant came over and said to Antonio in a conversation that
he tapped on Jose’s window, and when Jose came to the window, defendant shot him using a .357
caliber gun.
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2023 IL App (2d) 220071-U¶ 50 Therefore, five witnesses testified at one point to participating in or overhearing about 21
or more conversations in which defendant admitted shooting Jose. Though the majority of these
witnesses testified to a lack of recollection at trial, they were impeached with their grand jury
testimony about the conversations in which defendant described firing a gun at Jose. In such
circumstances, their grand jury testimony was admissible as substantive evidence. See 725 ILCS
5/115-10.1 (West 2022); People v. Wesley, 2019 IL App (1st) 170442, ¶¶ 22-25.
¶ 51 All of the descriptions of the shooting were largely consistent, with defendant knocking on
Jose’s window to get his attention and then shooting him once in the face/head with a .357 caliber
gun when Jose came to the window. This account also matches the crime scene, in which Jose was
found in his bedroom with a single bullet wound to the face, with his feet towards his window, and
the window was cracked and had a bullet hole through the frame. Liria, who testified in front of
the grand jury to hearing defendant’s admission the night of the shooting, provided additional
details, such as that defendant got the dog’s attention, which was consistent with Margarita’s
testimony that Jose had a dog that slept with him, and that Jose was watching television at the time,
which was consistent with the crime scene photo showing the television on. The dog may have left
the room immediately before or after the shooting, which would explain why there were no paw
prints in the blood. Regarding whether the light from Jose’s room would have been visible from
the street, the jury was able to hear testimony and see photos about the home’s layout and make
its own assessment. Further, the trier of fact is not required to be satisfied beyond a reasonable
doubt as to each link in the chain of circumstances if all of the evidence together satisfies the trier
of fact of the defendant’s guilt beyond a reasonable doubt. People v. Galarza, 2023 IL 127678, ¶
27. The use of a .357 caliber gun is consistent with Galason’s testimony that defendant admitted
to owning such a gun on the night of the shooting, and with the evidence that the bullet fragments
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2023 IL App (2d) 220071-Uremoved from Jose’s head came from either a .38 or .357 caliber gun. Defendant further attempted
to flee from the police when they were about to search his house, which was evidence of
consciousness of guilt. See People v. Jackson, 2019 IL App (1st) 161745, ¶ 30 (the defendant’s
attempt to flee indicated consciousness of guilt).
¶ 52 Defendant’s argument is largely an attack on the witnesses’ credibility. It is true that all of
the State’s witnesses came forward only after they had been arrested for other crimes and that they
all obtained concessions from testifying against defendant in front of the grand jury. The witnesses
further had drug addictions. Defendant also correctly notes that Liria recanted her testimony at
trial and that all of the witnesses other than Martin and Corbin testified that they did not remember
or never heard defendant saying that he shot Jose. However, the witnesses may not have come
forward initially due to the “code of silence” Corbin described, but then determined after being
arrested that they valued their individual freedom more. After obtaining the benefits from their
grand jury testimony, they may have been reluctant to testify at trial because they had nothing
further to personally gain and had all been friends or associated with defendant, or because they
feared retaliation, as evidenced by the FBI providing money to Olvera to relocate his family based
on alleged threats.
¶ 53 In the end, the jury was fully apprised through cross-examination of the witnesses’
involvement with drugs and the benefits that they received from authorities for their testimony
against defendant. It is the jury’s function as the trier of fact to assess witnesses’ credibility and to
resolve discrepancies and inconsistencies in the evidence. People v. Jackson, 2020 IL 124112, ¶
66. Moreover, the trier of fact may accept or reject all or part of a witness’s testimony. People v.
Logan, 352 Ill. App. 3d 73, 81 (2004). Based on the verdict, the jury determined that the witnesses’
grand jury testimony was more credible than their trial testimony, in light of all of the evidence
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2023 IL App (2d) 220071-Upresented at trial. See id. at 80 (jury could find the witness’s pretrial statement and grand jury
testimony more credible than her trial testimony, and the appellate court would not substitute its
judgment for that of the trier of fact). The evidence implicating defendant as the shooter was not
so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of defendant’s
guilt.
¶ 54 B. Zehr Principles
¶ 55 Defendant next argues that he is entitled to a new trial because the trial court violated
Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) in questioning part of the venire. Rule
431(b) codifies People v. Zehr, 103 Ill. 2d 472, 477 (1984), and requires that the trial court ask
each potential juror, individually or in a group, whether he or she understands and accepts the
following four principles: (1) the defendant is presumed innocent of the charges; (2) the State must
prove the defendant’s guilt beyond a reasonable doubt; (3) the defendant is not required to present
any evidence in his defense; and (4) the defendant’s failure to testify may not be held against him.
Ill. S. Ct. R. 431(b) (eff. July 1, 2012). Rule 431(b) requires questioning on whether the potential
jurors both understand and accept each of the enumerated principles. People v. Thompson, 238 Ill.
2d 598, 607 (2010).
¶ 56 Defendant argues that although the trial court informed the venire of all of the principles,
it failed to ask a panel of four jurors, including three jurors who were accepted on the jury, about
the fourth principle, which was particularly relevant here because he did not testify. Defendant
recognizes that he forfeited this argument by not objecting at trial or raising the issue in a posttrial
motion, but he asks that we review the issue under plain error. Plain error occurs where either (1)
a clear error occurs and the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, or (2) a clear error occurs that is so serious that it affected
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2023 IL App (2d) 220071-Uthe fairness of the trial and challenged the integrity of the judicial process. People v. Piatkowski,
225 Ill. 2d 551, 564-65 (2007). Absent evidence that a Rule 431(b) violation produced a biased
jury, which defendant does not allege, a Rule 431(b) violation is not cognizable under the second
prong of the plain-error doctrine. People v. Sebby, 2017 IL 119445, ¶ 50. Defendant must therefore
demonstrate plain error under the first prong. We review de novo whether the trial court violated
Rule 431(b). People v. Rodriguez, 2022 IL App (1st) 200315, ¶ 134.
¶ 57 In applying the plain error test, the first step is to determine whether any error occurred.
Thompson, 238 Ill. 2d at 613. Here, we agree with defendant that although the trial court informed
the venire of the four Zehr principles, it did not strictly comply with Rule 431(b) because it did not
ask four potential jurors if they understood and accepted the fourth principle. See People v.
Wilmington, 2013 IL 112938, ¶ 32 (trial court violated Rule 431(b) where it did not ask potential
jurors whether they understood and accepted the four Zehr principles). The State concedes that the
trial court failed to comply with Rule 431(b).
¶ 58 Whether evidence is closely balanced under the plain error test is distinct from whether the
evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. Piakowski, 225
Ill. 2d at 566. “In determining whether the evidence adduced at trial was close, a reviewing court
must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of
it within the context of the case,” considering “the evidence on the elements of the charged offense
or offenses, along with any evidence regarding the witnesses’ credibility.” Sebby, 2017 IL 119445,
¶ 53. If a defendant does not show that the evidence is closely balanced, the Rule 431(b) violation
is not reversible under the first prong of the plain error test. See, e.g., People v. Eubanks, 2021 IL
App (1st) 182549, ¶¶ 67, 75; People v. Hileman, 2020 IL App (5th) 170481, ¶¶ 39, 45;
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2023 IL App (2d) 220071-U¶ 59 Defendant argues that the evidence was, at a minimum, closely balanced because neither
side was fanciful or implausible. See Sebby, 2017 IL 119445, ¶ 61 (witness testimony for both the
State and the defendant had minor inconsistences, but neither side’s accounts of the morning’s
events were fanciful). Defendant argues that there was no physical or forensic evidence tying him
to the shooting despite the footwear impressions, beer bottles, bottle caps, latent prints, and
cigarette butts found at the scene. He highlights that there were also no eyewitnesses and argues
that the State’s case depended entirely on whether the jury believed its principal witness with
severe credibility issues. Defendant argues that Martin along with all of the other witnesses falsely
accused him to obtain benefits from the authorities in their own cases. Defendant maintains that
the jury’s questions about the investigation demonstrated that it did not necessarily find the State’s
version of events credible. See People v. Walker, 211 Ill. 2d 317, 342 (2004) (jury’s notes and
questions suggested that it did not find the State’s witnesses credible, such that the evidence against
the defendant was not as overwhelming as the State argued).
¶ 60 We conclude that the evidence was not closely balanced in this case. Defendant and Jose
were in rival gangs. Five distinct witnesses who were previously friends with defendant or
associated with him through his gang membership testified that he confessed to them or that they
heard him admit in conversations that he went to Jose’s house, knocked on Jose’s bedroom
window, and shot Jose once through the window using a .357 caliber gun, all of which matched
the crime scene. Liria testified to additional details regarding Jose watching television and a dog
being in his room, which was consistent with other evidence. Defendant ran out of his house when
the police arrived to execute a search warrant, and he admitted to the police that on the night of
Jose’s death, he possessed a “three-five,” which was another name for a .357 handgun. The bullet
fragments removed from Jose’s head came from either a .38 or .357 caliber gun. We further note
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2023 IL App (2d) 220071-Uthat the jury’s questions concerned details about the timing and investigation of the case (see supra
¶ 30), as opposed to skepticism about witnesses’ credibility. As the evidence was not closely
balanced, defendant has not shown that the trial court’s Rule 431(b) violation constituted plain
error.
¶ 61 C. Closing Argument
¶ 62 Last, defendant argues that he was denied his right to a fair trial when the prosecution made
several improper comments during closing argument. Defendant argues that the prosecutor twice
asserted that minutes after Liria learned of the shooting from the police scanner, she heard
defendant confess to Antonio. The prosecutor also stated that according to Liria, defendant was
wearing all black. Defendant argues that Liria denied any recollection of these events and that the
State was unsuccessful in impeaching her with the specific portions of her grand jury testimony.
¶ 63 Defendant further argues that the prosecutor also improperly asserted that defendant told
Martin about an argument that he had with Jose and shot him to “settle the score.” Defendant
contends that this was a misstatement of the evidence because although Martin testified that
defendant shot Jose over a general gang dispute, he never testified that defendant and Jose had
personally argued.
¶ 64 Defendant argues that the prosecution’s most prejudicial error was its repeated statements
that witnesses were afraid to testify against defendant. Specifically, the prosecutor stated:
“They want to argue that Ritchie Olvera was provided $500 to move his family and
that is why he provided information. No. No. No. He provided the information long before
his family was moved with that $500 provided by the FBI.
Why did they provide that? He was being threatened. The [K]ings were going to
kill him because he testified in front of the grand jury. They knew it. It is the same with
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2023 IL App (2d) 220071-Uevery witness who came in here. Did they have to worry about retaliation from the [K]ings?
Is that why people are scared? Is that why people said I lied at the grand jury?”
The prosecutor later stated, “They all have gang ties still and they are scared and they all don’t
want to testify.”
¶ 65 The prosecutor continued with this theme by subsequently stating:
“Of course he’s here and he doesn’t want to testify. Does anybody want to testify?
I bet most of the police officers don’t want to testify. I can guarantee you that Margarita
Covarrubias did not want to testify and neither does any one of them. Especially when
these five civilians have to look out for the Latin Kings. Because now they testified openly
in a court of law and their testimony is going to convict this defendant.”
Finally, the prosecutor stated, “Olvera had to be moved by the FBI because he received death
threats. Certainly explains why people are reluctant to testify.”
¶ 66 Defendant recognizes that defense counsel did not object to the disputed remarks during
closing argument, thereby failing to preserve the issue for review. See People v. Enoch, 122 Ill. 2d
176, 186 (1988). Defendant asks that we review the remarks under the first prong of the plain error
test, which requires a showing that the evidence was closely balanced. Piatkowski, 225 Ill. 2d at
564-65. However, we have already considered and rejected the argument that the evidence was
closely balanced. See supra ¶ 59.
¶ 67 Defendant alternatively argues that defense counsel was ineffective for failing to object to
the disputed statements. For a claim of ineffective assistance of counsel, a defendant must satisfy
the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hodges,
234 Ill. 2d 1, 17 (2009). The defendant must first establish that, despite the strong presumption
that trial counsel acted competently and that the challenged action was the product of sound trial
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2023 IL App (2d) 220071-Ustrategy, counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms such that he or she was not functioning as the counsel guaranteed
by the sixth amendment. People v. Manning, 227 Ill. 2d 403, 416 (2008). Second, the defendant
must establish prejudice. People v. Valdez, 2016 IL 119860, ¶ 14. In most situations this is done
by showing a reasonable probability that the proceeding would have resulted differently absent
counsel’s errors. Id. A failure to establish either prong of the Strickland test precludes a finding of
ineffectiveness. People v. Peterson, 2017 IL 120331, ¶ 79.
¶ 68 Prosecutors generally have wide latitude in the content of their closing arguments and may
comment on the evidence and any reasonable inferences from the evidence, even if the inferences
reflect negatively on the defendant. People v. Williams, 2022 IL 126918, ¶ 44. A prosecutor may
also respond to statements by defense counsel that invite a response but must refrain from making
improper, prejudicial comments and arguments. People v. James, 2021 IL App (1st) 180509, ¶ 39.
We view the challenged remarks in the context of the closing argument as a whole. Jackson, 2020
IL 124112, ¶ 82. Improper remarks constitute reversible error only if they result in substantial
prejudice to the defendant, such that absent the remarks, the verdict would have been different.
People v. Branch, 2018 IL App (1st) 150026, ¶ 32.
¶ 69 We conclude that defendant cannot satisfy both prongs of the Strickland test for the alleged
improper remarks. Regarding the statements about Liria, Liria was impeached with her grand jury
testimony that Antonio learned from the police scanner that Jose had been shot, and that Antonio
called Liria into his room to listen to the scanner. Liria had also previously testified that Antonio
and defendant had a conversation about “What had just happened, like how he did it.” When
questioned at the grand jury about what defendant said in response to Antonio’s question of “how
he had done it,” Liria testified that defendant said that he had walked around Jose’s house, got the
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2023 IL App (2d) 220071-Udog’s attention through a window, and when Jose went to see what the dog was doing, defendant
shot him. Accordingly, the prosecutor’s statements that Liria heard defendant confess to Antonio
were supported by the evidence, such that defense counsel was not ineffective for not objecting to
these remarks.
¶ 70 The State acknowledges that it failed to impeach Liria with her grand jury testimony that
defendant was wearing black that night, such that the prosecutor should not have commented on
the color of defendant’s clothing during closing argument. However, this detail was not significant
in the State’s case against defendant, meaning that defendant cannot satisfy the second prong of
the Strickland test for this remark; there is no reasonable probability that the trial would have
resulted differently had defense counsel objected to that statements about the color of defendant’s
clothing.
¶ 71 The prosecutor’s statement that defendant told Martin that he shot Jose to “settle the score”
was within the bounds of reasonable commentary on the evidence, so defense counsel was not
ineffective for not objecting to the statement. Martin testified that defendant shot Jose “over a
dispute” because “they were in rival groups.” Further, Sergeant Gonzalez testified that the Latin
Kings and the Maniac Latin Disciples were in a “constant battle *** over anything from the drug
trade to territory and recruitment.” Gonzalez also testified that the gangs tended to shoot each other
out of retaliation. Defendant is correct that there was no evidence that he had personally argued
with Jose, but the prosecutor’s reference to an argument between the two was brief and isolated,
with the result that there is no reasonable probability that an objection from defense counsel would
have changed the trial’s outcome. See People v. Bell, 2021 IL App (1st) 190366, ¶ 104.
¶ 72 The prosecutor’s argument that the witnesses were afraid to testify against defendant at
trial was supported by the evidence and reasonable inferences from the evidence, and some of the
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2023 IL App (2d) 220071-Uremarks were further invited by defense counsel. Defense counsel argued in closing that the
witnesses could not be believed because they “need[ed] to get out of jail” and “do whatever they
had to do.” He also stated, “Olvera got out of jail and got $500 from the federal government for
what he gave for his information. And what did he say? He heard about it. That’s it.” In response,
the prosecutor argued that the FBI gave Olvera the money because he was being threatened. The
parties had stipulated that the FBI paid Olvera $3500 so that he could relocate his family due to
threats he allegedly received. Jose’s shooting was gang-related and there was testimony about
gangs having a code of silence, so it was a reasonable inference that the threats were death threats
from the Latin Kings. Many of the witnesses claimed not to recall any conversations in which
defendant admitted shooting Jose, contrary to their grand jury testimony, and Liria testified that
she lied to the grand jury. It is reasonable to infer that the witnesses’ silence at trial was a result of
being scared of retaliation from the gang. The prosecutor emphasized that he was inferring their
motivations by stating, “Did they have to worry about retaliation from the [K]ings? Is that why
people are scared? Is that why people said I lied at the grand jury?” In this manner, the prosecutor
highlighted that this was an issue for the jury to resolve for itself, and the statements were within
the wide latitude of permissible argument. Accordingly, defense counsel did not act unreasonably
in not objecting to these remarks, and defendant’s claim of ineffective assistance of counsel fails.
¶ 73 III. CONCLUSION
¶ 74 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 75 Affirmed.
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