People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March). Episode 616 (Duration 15:29)
Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.
Defendant and his buddy approach a rival gang member and trash talking ensues.
At one point the defendant’s buddy takes out his gun and fires 10 shots at the guy. One shot hits him in the back and the man dies. The shooter is convicted of murder in his own trial and gets 62 years.
This defendant says he didn’t know his buddy had a gun and didn’t know he was going to shoot the guy.
Defendant and the shooter were in the same gang, with the shooter allegedly serving in the role of security for the gang. Defendant and the shooter allegedly acted with the belief that the victim was a member of a rival gang. The state also showed that:
- Defendant and the shooter walked to the convenience store, encountered the victim at the counter, and trash talked. Defendant and the shooter quarreled with the victim as he backed out of the store and across the parking lot.
- Defendant admitted that he wanted a “one-on-one” fistfight with the victim, but the shooter shot him first.
- The surveillance video shows the shooter flashing gang signs at the victim.
- Defendant had gang tattoos.
Defendant says he is not accountable and says the indictment should have been dismissed because the evidence presented at the hearing showed that defendant did not confess or flash gang signs and the officers contrary testimony improperly affected the grand jury’s deliberations. Defendant argues that the statement was misleading because the surveillance video, which the grand jury did not view, does not show him flashing gang signs.
The jury found defendant guilty of first-degree murder and also found that, during the commission of the offense, defendant, or one for whom he was legally responsible, was armed with a firearm. The court sentenced defendant to 38 years’ imprisonment.
The trial turned on whether defendant was accountable for the shooter’s conduct, which the State attempted to show with evidence that defendant and the shooter were acting with a common criminal design to harm the victim, motivated by the victim’s disrespect to them and their gang.
“Accountability is not a crime in and of itself but, rather, a mechanism through which a criminal conviction may result.” People v. Pollock, 202 Ill. 2d 189, 210 (2002).
A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).
To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.
Says He Didn’t Know
Defendant insists that he had no idea that the shooter would shoot the victim and therefore he did not share a common criminal design with the shooter.
Mere presence at the scene of a crime, or even presence coupled with flight from the scene or knowledge of the commission, is not sufficient to establish accountability. It’s noteworthy that a third man was with the defendant’s. He didn’t approach the victim and stayed clear of the whole thing. He was not charged.
Unless an alleged accomplice intends to aid the commission of a crime, no guilt attaches. Perez, 189 Ill. 2d at 268.
Common Design Rule
“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).
The State’s position was that defendant and the shooter acted with a common criminal design to harm the victim, and, to establish defendant’s accountability, it relied on his statement that he exited the store with the intent to fight the victim when the shooter shot him.
Here’s what the evidence was:
- Defendant and the shooter, were members of the same gang, and
- Defendant thought the victim was a member of a rival gang.
- Defendant was heard to make, and admitted making, gang references to the victim
- While arguing and talking trash with him.
- Defendant also admitted previously having a fistfight with the victim.
- Defendant admitted that he knew the shooter
- But was evasive about their relationship and the shooter’s role as the shooter.
- Defendant admitted that he exited the store intending to fight the victim.
- Defendant fled with the shooter.
- Defendant talked to police only after they sought him out.
The State presented ample evidence from which the jury could infer that defendant’s trash talking and pursuing the victim from the store was a cue to the shooter to escalate the confrontation
The shooter’s act of shooting the victim was in furtherance of the common design to harm the victim. Evidence of an express agreement between defendant and the shooter was not necessary to establish a common purpose to commit a crime, as defendant’s cues to the shooter established his participation in the criminal scheme, even though there was no evidence that defendant directly participated in the actual crime of shooting the victim.
A prejudicial denial of due process can occur where an indictment is procured through prosecutorial misconduct. Legore, 2013 IL App (2d) 111038, ¶ 23. “ ‘The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.’ ” Oliver, 368 Ill. App. 3d at 694 (quoting People v. DiVincenzo, 183 Ill.2d 239, 257 (1998)).
To warrant dismissal of the indictment, the denial of due process must be unequivocally clear, and the prejudice must be actual and substantial. Oliver, 368 Ill. App. 3d at 694-95. Prosecutorial misconduct resulting in a due process violation is actually and substantially prejudicial only if the grand jury would not have otherwise indicted the defendant. Legore, 2013 IL App (2d) 111038, ¶ 23.
Prejudice is shown if the evidence was so weak that the misconduct induced the grand jury to indict. Oliver, 368 Ill. App. 3d at 697-98.
The Grand Jury
In this case, the officer answered “yes” to several questions that allegedly conveyed to the grand jury that defendant “confessed” and flashed gang signs at the victim.
The two sets of questions were:
(1) “Subsequently the two defendants were arrested?” and “They did make confessions, is that correct?” and
(2) “As the victim began to walk out of the store, one of the defendants started flashing gang signs at him?” and “The defendants are following the victim out of the store flashing gang signs and arguing with him, is that correct?”
Furthermore, the challenged statement was immediately preceded by the officer affirming that, “as the victim began to walk out of the store, one of the defendants started flashing gang signs at him.”
What Does Confess Mean Anyway?
The Officer’s statement that defendant “confessed” was ambiguous and not necessarily false.
Defendant defines “confession” as “a written or spoken statement in which you say that you have done something wrong or committed a crime.” Definitions of “confess” include “to tell of or make known (something private, hidden, or damaging to oneself)” and “to admit as true; assent to; acknowledge, especially after a previous doubt, denial or concealment.” Webster’s Third New International Dictionary 475 (1993).
Defendant claims that he, in fact, “did not confess to any involvement in the murder,” but that assertion is refuted by defendant’s acknowledgements during the police interview. Defendant’s initiation and escalation of the confrontation is now undisputed since the police confronted him with the surveillance video during the interview. Defendant admitted that he was at the convenience store and was at least a former member, if not a current member, of the gang.
Defendant admitted that he directed gang-related trash talk at the victim, whom he identified as a rival gang member. Defendant also admitted that he followed the victim into the parking lot with the shooter and intended a fistfight with the victim while the shooter looked on. He also admitted during his police interview that he argued with the victim as they exited the store.
Defendant has not shown an “unequivocally clear” due process violation.
Even if the officer’s affirmations regarding “confessions” and who flashed gang signs were inaccurate, we conclude that they did not cause “actual and substantial” prejudice.
The validity of the indictment did not turn on whether defendant explicitly “confessed” to being accountable for the shooter’s conduct or flashed gang signs at the victim. The grand jury heard detailed evidence that defendant and the shooter were fellow gang members who jointly confronted and aggressively pursued the victim, who they thought was a rival gang member. From these facts, we cannot say that “without [the complained-of testimony] the grand jury would not have indicted the defendant.” See Oliver, 368 Ill. App. 3d at 696-97.
The remaining evidence supported the grand jury’s determination of probable cause based on defendant’s actions.
Judge Had More Facts During The Hearing
The remaining evidence presented at the hearing shows that defendant admitted to conduct supporting the inference that he and the shooter shared a common criminal design. Defendant’s initiation and escalation of the confrontation was confirmed by the surveillance video that was viewed by the trial court at the hearing. At the request of defense counsel, the trial court also viewed portions of the video-recorded police interview of defendant.
Counsel made the calculated decision that the surveillance and interview videos undermined the officer’s testimony.
In this appeal we are called upon to determine whether the trial court erred in denying defendant’s motion to dismiss the indictment after conducting a hearing that included the presentation of this evidence. The facts known at the time of the hearing were that:
- Defendant admitted that he was at least a former member of the Latin Kings.
- Defendant admitted directing gang-related trash talk at the victim,
- Whom he identified as a rival gang member.
- Defendant admitted that he and the shooter followed the victim into the parking lot
- Defendant admitted he intended to fight the victim.
Under these circumstances, the grand jury would have indicted defendant even if the challenged testimony by the officer had been excised from the proceedings.
As such, there was no unequivocally clear denial of due process resulting in actual and substantial prejudice.
We agree with the court that the officer’s testimony could have been presented more clearly and completely, and we do not condone the ambiguities that the prosecution elicited. However, to obtain a dismissal of the indictment for a due process violation, defendant had the burden of establishing that the error was “unequivocally clear” and resulted in “actual and substantial” prejudice. Defendant’s challenge to the indictment rises and falls on this extremely limited scope of review, which supports the court’s decision not to dismiss the indictment.
We hold that the trial court did not err in denying defendant’s motions to dismiss the indictment. We conclude that there was sufficient evidence to support the indictment, even without the challenged testimony that defendant confessed to the police and flashed gang signs at the victim. Second, we hold that the trial court did not abuse its discretion in excluding the shooter’s statement that defendant should not be charged. Third, we hold that the State’s closing argument did not amount to reversible prosecutorial misconduct.
Finally, the evidence presented at trial supported the murder conviction beyond a reasonable doubt.
There Is A Strong Dissent
The majority has exhausted itself trying to find a way to justify―or, at the very least, excuse―the State’s false claim of defendant’s confession; it has misstated law, conjured evidence, and created a false construct wherein the trial court, rather than the grand jury, determines probable cause based on evidence not presented to the grand jury.
Taken to its logical conclusion, the majority’s position supports the theory that no evidence need be presented to the grand jury so long as the defendant is convicted; the lack of evidence before the grand jury is harmless error if the petit jury is presented with proof beyond a reasonable doubt. If this satisfies due process, then I submit that the grand jury is a subverted vestigial organ that needs to be abandoned and replaced.
The majority essentially gives the State carte blanche to present whatever it wants to the grand jury, no matter how false and deceptive, so long as there is any evidence, no matter how equivocal, to support the resulting indictment. That is not the law, never was the law, and should never be the law if the grand jury is to serve its traditional purpose. No longer “a ‘shield’ against arbitrary prosecutions” (Rodgers, 92 Ill. 2d at 289), the grand jury becomes the proverbial mushroom that is kept in the dark and fed false confessions.
- People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28) (Prosecutor used an inartful example to illustrate accountability, but this was not plain error.)
- People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04) (Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).)
- Don’t Beat-Up A Person With An Enlarged Heart – People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47) (Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart)
- What Is Criminal Accountability? – Episode 054 (Duration 16:17) (I created a simple 2 page accountability cheat-sheet for criminal law attorneys. I keep this towards the front of my trial book. It comes in handy in accountability cases when I need exact language quickly)
- People v. Boston, 2016 IL 118661 (February 2016) (Episode 144 Duration 6:29) (Sloppy grand jury work does not prejudice the defendant.)
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