People v. Djurdjulov, 2017 IL App (1st) 142258 (September). Episode 393 (Duration 22:18)

Defendant gets a new trial because the trial judge refused to pay for a phone records expert.

Cobras v. SGD

The Spanish Cobras gang and the Spanish Gangster Disciples (SGD) gang fought for control of areas in Chicago early in 2009.

On January 30, 2009, a thrown glass bottle shattered a window in the home of Djurdjulov, a member of the Cobras.

Around 1 a.m. on January 31, 2009, a fire started raging through a three-story apartment building on Argyle Street, near Pulaski Road.

Members of the SGD lived on the second and third floors of the burned building.

Rosanna Ocampo and her daughter, Itzel Fernandez, who lived on the second floor of the building, died from inhaling smoke from the fire.

Arson Suspected

Firemen at the scene smelled gasoline in the building.

Police recovered debris from the scene and sent it to a lab to test for accelerants.

The Interrogation

Police arrested Djurdjulov on March 10, 2009, in connection with an incident unrelated to the fire.

Djurdjulov remained in an interrogation room at the station for about 36 hours, where police questioned him about the fire. After about 24 hours in custody, including 6 hours of questioning, and significantly after detectives told Djurdjulov about the cell phone records, Djurdjulov changed his account, and said he saw the fire when it started. Police recorded the questioning.

Djurdjulov eventually said that David Vasquez, a former member of the SGD, started the fire, and Vasquez asked Djurdjulov to act as a lookout.

Djurdjulov said he went with Gomez around midnight to drop off some friends with whom they had spent the evening. After they dropped the others off, Djurdjulov needed to urinate. Gomez parked and Djurdjulov got out of the car. He went into an alley to urinate. He saw an empty bottle, near a building where he knew SGD lived.

He decided to throw the bottle through the window of the home. As he got to the building, he saw the fire starting and he saw Avila leaving the building.

Detectives said someone must have helped Avila.

Djurdjulov said he saw a second person in a hoodie leaving with Avila, but he did not recognize that person.

Prosecutors charged Djurdjulov with two counts of first degree murder.

Cell Phone Records
Mentioned In Interrogation

Detectives told Djurdjulov that Avila’s cell phone records showed that Avila stayed home that night. Djurdjulov said he saw Avila around 7 p.m. on January 30, 2009, several hours before a bottle came through the window of Djurdjulov’s home, and Avila said he intended to get revenge on SGD because they shot at him.

Detectives emphasized that the cell phone records made the account unbelievable.

Some hours later, Djurdjulov changed his account again.

He said Vasquez, formerly an SGD, set the fire.

Djurdjulov said Avila did not come to the scene at all.

Djurdjulov saw Vasquez in Cobras territory on January 30, 2009. Vasquez told Djurdjulov to meet him near the SGD home on Argyle at 1 a.m. so Djurdjulov could watch Vasquez burn it. Police said that Vasquez must have needed someone to look out for police and SGD. Djurdjulov said that Vasquez asked him to act as a lookout, and he agreed.

Detectives told Djurdjulov that the cell phone records showed his phone exchanging texts with Gomez’s phone.

They said his story, that Gomez dropped off some friends with Djurdjulov in Gomez’s car and then they went to the Santiagos’ home, made no sense because he would not send text messages to Gomez while riding in Gomez’s car.

The detectives also told Djurdjulov that his cell phone records showed a call to Camacho, another Cobra, around 1 a.m. Djurdjulov continued to insist that he did not call Camacho any time near 1 a.m., and Djurdjulov had ridden in Gomez’s car after midnight and then went with Gomez to the Santiagos’ home around 1 a.m.

Djurdjulov said that when he went to meet Vasquez at the arranged spot before 1 a.m., Gomez parked and Djurdjulov got out of the car without telling Gomez about the arranged meeting. Djurdjulov also said, consistently, that he did not tell Gomez about the fire when he returned to Gomez’s car.

The parties stipulated to cell phone records that showed a call from Djurdjulov to Camacho around 3 a.m. on January 31, 2009, but no call near 1 a.m.

Over the course of about 36 hours in the interrogation room from March 10 to March 12, 2009, in about 8 hours of questioning, the detectives who interviewed Djurdjulov frequently accused him of lying and frequently yelled at Djurdjulov.

Motion For Funds

Djurdjulov expected police to use cell phone records as evidence at the murder trial.

Defense counsel filed a motion asking the court for funds so that Djurdjulov could pay an expert witness to analyze the cell phone records and help with cross-examination of the prosecution’s cell phone expert.

At the hearing on the motion, Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert. Djurdjulov testified that his aunt paid the fees of his privately-retained attorney.

The State offered no evidence to challenge the credibility of Djurdjulov’s assertions about his assets.

Trial Court Denies Motion

“[Djurdjulov has] been represented by privately-retained attorneys for the last four years. He in fact may be indigent, but someone’s been paying the bills for his representation. It would seem to me if the issue is the expert fees for the defense of the case, in light of the fact that persons *** have been providing funds to represent him in the case so far, that the issue is is that person able to pay for the expert fees.”

The court denied the request for fees.

Other Witnesses

No witness claimed to have seen who set the fire, and no witness claimed to have seen Djurdjulov near the apartment building near the time the fire started.

Michael testified that police arrested him on March 17, 2009, and told him someone had identified him as a shooter in an incident unrelated to the fire.

Police questioned Michael about the fire and not about the shooting.

He told them that Djurdjulov said he set the fire.

Prosecutors never charged Michael in connection with the shooting incident.

The parties stipulated that Michael told an investigator working for defense counsel that Djurdjulov had not smelled like gasoline on January 31, 2009. The parties stipulated that Michael also said to the investigator that during the questioning in March 2009, police told Michael that they would release him from custody if he said what police wanted to hear about Djurdjulov.

Michael testified that he lied to the defense investigator.  

At the trial Michael testified that around the time of the arson defendant’s left his gas-soaked pants in Michael’s bathroom.

Michael put the pants in the garbage.

The Cell Phone Records

 Joseph Raschke of the Federal Bureau of Investigation testified that the numbers in the record identified the cell phone that made each call, the cell phone that received the call, and the cell phone towers that transmitted the signals to and from those cell phones.

From the location of the tower that transmitted the call, Raschke could approximate the location of the cell phone, within a radius of one or two miles.

Records for Avila’s phone showed that he made and received several calls after midnight on January 31, 2009, and all used the tower nearest to Avila’s home.

Calls from Djurdjulov’s phone at 12:53 a.m. and 1:06 a.m. used a tower only two blocks from the fire.

A call at 1:12 a.m. used a tower near Cicero and Peterson.

According to Raschke, the calls showed that Djurdjulov was near the scene of the fire when the fire started, and he left the area soon thereafter.

On cross-examination, Raschke admitted that obstructions, or damage to a tower, can affect which tower transmits a call. Raschke did not check for obstructions or damage to towers in the area of the fire and surrounding neighborhoods.

Defendant’s Witness

A codefendant testified for defendant saying he was with all the players the night of.

Defendant never smelled like gas and he never said he did it.

Further, all he ever did was get out of the car to take a piss and he never made the calls the police said he made.

Jury Deliberations

During deliberations, the jurors requested the cell phone records, a map showing the cell phone towers, and a transcript of the questioning of Djurdjulov from March 10 to March 12, 2009.

The court sent the requested materials to the jury.

The jury found Djurdjulov guilty of the first degree murders of Ocampo and Fernandez.

Sentence

The presentence investigation report showed that Djurdjulov, who turned 18 between the date of the fire and the date of questioning.

The trial court sentenced Djurdjulov to two terms of 45 years in prison with the sentences to run consecutively.

Issue Not Waived

First, constitutional issues that were previously raised at trial and could be raised later in a postconviction petition are not subject to forfeiture on direct appeal.

When, as here, a defendant fails to raise a constitutional issue in a posttrial motion but the issue was raised at trial and could be raised in a postconviction petition ‘the interests in judicial economy favor addressing the issue on direct appeal rather than requiring defendant to raise it in a separate postconviction petition.

We find that Djurdjulov has not forfeited review of the issue of whether the trial court violated his constitutional right to a fundamentally fair trial when the court denied his request for fees so that he could hire an expert to review the cell phone data.

We review the issue under the standards for issues properly preserved for review, despite the failure of Djurdjulov’s counsel to include the issue in the posttrial motion for a new trial.

Issue

Djurdjulov contends that the trial court violated article I, section 8 of the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and the sixth amendment to the United States Constitution (U.S. Const., amend. VI) when it denied his motion for fees so that he could hire an expert to analyze the cell phone records. See People v. Lawson, 163 Ill. 2d 187, 219-20 (1994).

Expert Witness

Every defendant accused of a crime has a “fundamental right to summon witnesses in his behalf.” Lawson, 163 Ill. 2d at 220. “[The right] should not be made to depend upon the financial circumstances of the defendant.

Reasonable funds should be made available to accuseds, in certain circumstances, in order to imbue the right with substance.” Lawson, 163 Ill. 2d at 220.

“[I]t is well established that a denial of funds to an indigent for the securing of expert witnesses in defense of criminal charges may violate constitutional protections.”

Right To Funds

The State contends that Djurdjulov did not prove indigence.

Djurdjulov testified that he owned no bank accounts, no car, no valuable items like electronics or jewelry, no home or land, no business, and no assets he could use to pay for an expert.

The State offered no evidence to challenge the credibility of Djurdjulov’s assertions about his assets.

When a defendant shows indigence and the need for an expert, he has a right to fees “regardless of whether the indigent defendant receives assistance of counsel from a court-appointed attorney.

It is the indigency of the defendant that matters, not who represents the defendant at trial.

Case Law

Nonetheless, the State contends that we should affirm the conviction despite the court’s error because Djurdjulov did not show that he needed an expert witness. United States v. Durant, 545 F.2d 823 (2d Cir. 1976), which our supreme court cited with approval in Lawson, 163 Ill. 2d at 229, provides useful guidance.

Prosecutors accused Durant of bank robbery, and they intended to present testimony from a fingerprint expert. Durant sought funds so that he could hire an expert to examine the prints from the crime scene. The trial court denied the request, finding that defense counsel could protect Durant’s rights by cross-examining the prosecution’s expert.

The expert testified that fingerprints found on the examination of a government expert as well as presentation of an expert defense witness. This does not mean that applications for expert assistance should be granted automatically, or that frivolous applications should be granted at all. But it does mean that the Act must not be emasculated by inappropriate construction.

The 2nd Circuit said in that case the judge should have granted the defense request for appointment of a fingerprint expert.

We find Durant persuasive.

Analysis

The cell phone records here formed a critical part of the evidence against Djurdjulov.

The jury apparently considered the cell phone evidence especially significant, as it specifically requested the records and a map showing the locations of the towers relative to the fire and the other addresses mentioned at trial.

The defense needed an expert at least to educate defense counsel about the technicalities of the field and to assist with the preparation of an effective cross-examination of Raschke.

Even the police needed help understanding the records, as the officer who obtained the records said cell providers explained the records, which he found “quite confusing.”

Less Than Slam Dunk Against Defendant

The other witnesses against Djurdjulov, like the robbers who testified against Durant, had much to gain from testifying against Djurdjulov.

The dissent relies in part on the testimonies of Michael, LaSalle, and Quesada, who all changed their statements completely after police arrested Michael and Michael stood to gain a considerable advantage by testifying against Djurdjulov. Michael, LaSalle, and Quesada all testified that they lied to police, and after they changed the account they gave police, they lied to a defense investigator. A reasonable trier of fact could reject all of the testimony of Michael, LaSalle, and Quesada as lacking credibility.

While Djurdjulov eventually gave a statement implicating himself as an accomplice, the prosecutor argued that the jury should not believe the statement, except insofar as it placed Djurdjulov at the scene of the fire with some idea that someone might start a fire there.

Here, police kept Djurdjulov, a teenager, in custody for 36 hours, during which police used deception and intimidation to elicit statements from Djurdjulov. Djurdjulov made a number of statements. The State asked the jury to reject as unbelievable almost all aspects of almost all of the statements Djurdjulov made. But the State and the dissent now insist that we should find that part of one of the statements amounts to overwhelming evidence that Djurdjulov committed murder, even while the State and the dissent demand that we reject as unbelievable other parts of the same statement. We find that a reasonable trier of fact could disagree with the prosecution’s tenuous inferences from the inconsistent statements made after a long period in custody.

The jury could have viewed Djurdjulov’s statement, in the context of the extensive questioning, as his effort to explain the evidence the police described and not as a truthful statement at all.

No physical evidence tied Djurdjulov to the crime or the crime scene. No credible prosecution witness saw Djurdjulov near the murder scene.

The only credible prosecution witness whose testimony placed Djurdjulov near the scene of the crime was Raschke, the cell phone expert. An expert who could challenge the credibility of Raschke’s testimony could have made a critical difference in the result of the trial.

We find that the record supports the conclusion that the lack of an expert prejudiced Djurdjulov.

Holding

The trial court abused its discretion when it relied on the payment of fees by Djurdjulov’s aunt to private counsel as grounds for denying the indigent Djurdjulov the fees needed to retain an expert.

Following Durant, we vacate the convictions and remand for a new trial.

We have given serious consideration to merely remanding for appointment of an expert whose report could then be considered by the trial court or by us in deciding whether to grant a new trial.

But we believe this misconceives the purpose of providing expert service to the defense.

It is not to supply either the trial or appellate court with anything, but to furnish defense counsel expert information to use as he sees fit. It may be that such expert advice will prove to be of little or no assistance, but on this record we can hardly say that.

Furthermore, even if the new trial ultimately proves wasteful because an appointed expert does not help the defense, none of the blame for the waste will rest with the defendant.

Under the circumstances, we believe it appropriate to order a new trial.

 The prosecution has not met its burden of proving that the trial court’s error was harmless beyond a reasonable doubt. Following the reasoning of Durant, 545 F.2d at 827-29, we find that we must reverse the convictions and remand for a new trial because of the trial court’s constitutional error of denying Djurdjulov’s motion for the funds he needed to hire an expert to challenge Raschke’s testimony.

The trial court denied Djurdjulov his right to present witnesses on his behalf when it denied his request for fees so that Djurdjulov could hire an expert to contest the prosecution’s evidence concerning cell phone records.

Accordingly, we vacate the convictions and remand for a new trial.

See Also

Episode 279 – How To Win A Motion For Funds With Joshua Kutnick