Opinion filed July 20, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-14-0178 v. ) Circuit No. 09-CF-1193

)

JESUS E. ZAMBRANO, ) Honorable

) Amy Bertani-Tomczak, Defendant-Appellant. ) Judge, Presiding _____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices McDade and Wright concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant Jesus Zambrano was found guilty after a jury trial of first degree murder and

sentenced to 45 years’ imprisonment. He appealed his conviction, arguing his trial counsel was

ineffective for failing to impeach a witness as to the grant of use immunity he received before

testifying and for failing to submit a jury instruction on accomplice witness testimony. We find

that the record is insufficient on direct appeal to address Zambrano’s claim regarding

impeachment. We further find that Zambrano received ineffective assistance of counsel when

defense counsel failed to submit an accomplice witness jury instruction. We reverse and remand.

¶ 2 FACTS ¶3 Defendant Jesus Zambrano was charged with two counts of first degree murder. Pedro

Sanchez was also charged. The indictment alleged that on May 22, 2009, Zambrano and

Sanchez shot Robert Gooch in the head with a handgun, intending to kill him (720 ILCS 5/9­

1(a)(1) (West 2008)) (count I) or knowing that the act created a strong probability of death (720

ILCS 5/9-1(a)(2) (West 2008)) (count II). Zambrano was arrested in Texas, about 25 miles from

the Mexico border. He was travelling with his mother and grandmother. He had shaved his

head, carried no identification and told the officer who stopped their vehicle that his name was

Juan. Zambrano was extradited to Illinois without objection.

¶4 A jury trial took place. During opening arguments, defense counsel argued that Christian

Lopez, a witness for the State, was a “terrible liar,” attacking his credibility on several grounds.

The following evidence was then presented. The murder of Gooch took place at the Larkin

Village apartment complex, which included buildings at 1007 and 1009 Lois Place. The

buildings could not be accessed through each other and had separate north and south

entrance/exit doors. Motion-activated cameras were mounted on each doorway.

¶5 Videos from the cameras on the south doors of 1007 and 1009 Lois Place were played in

court. State’s exhibit 3, from 1009 Lois Place, showed an Oldsmobile Cutlass sedan pulling up

and parking in front of the 1009 building at 12:47 a.m. on May 22, 2009. A man got out of the

front passenger seat and walked toward the building. He was wearing a white T-shirt and

walked with his right hand at his side. The driver, with dark hair and wearing a hoodie, then got

out of the car. As he walked to the front of the car, the backseat passenger on the driver’s side

reached into the front seat of the Cutlass. The driver opened the hood, reached under it, and

removed something, which he put into either his waistband or hoodie pouch. The driver shut the

car hood and walked toward the building. A few seconds later, the driver’s side, backseat

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passenger left the car and followed the driver toward the building. He was also wearing a hoodie

and pulled his hood over his head. A fourth man stayed in the backseat on the passenger side.

¶6 The video showed the man in the white T-shirt walk toward 1007 Lois Place at 12:51

a.m. Two seconds later, the driver and driver’s side backseat passenger ran across the grass in

front of the 1009 building. The passenger was in front of the driver and got back into the

Cutlass. The driver again opened the hood and appeared to put something back under it.

Approximately 10 seconds later, the man in the white T-shirt is seen running from the left behind

some other cars parked by the Cutlass. He and the driver both got back into the vehicle and left.

¶7 Elissa Hinton testified. She was Gooch’s girlfriend. He and his two sons were spending

the night at her apartment on the third floor at 1007 Lois Place when he was shot. Someone

buzzed her apartment after 11 p.m., when she and Gooch were sleeping. Gooch eventually got up

to answer the door. He opened the door and Hinton heard voices, which she identified as Gooch

and Pedro Sanchez. She had recently broken up with Sanchez after dating him for three months

while she was in a long-term relationship with Gooch. Hinton heard Sanchez say, “It was my

girl,” and then heard a gunshot. When she went into the living room, she saw Gooch lifeless on

the floor. She identified Sanchez from the video from the south door of 1009 Lois Place. He was

wearing a white T-shirt. Hinton did not know Zambrano and did not identify him from the

security camera videos.

¶ 8 A video from a McDonald’s, State’s Exhibit 4, was also played for the jury. It showed

Zambrano, who was driving the Cutlass, pull through the drive through at 12:36 a.m. and leave at

12:40 a.m. A Joliet police officer testified that the McDonald’s is a 5 to 10 minute drive from

the apartment complex. An officer who responded to the scene testified that he was informed by

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another resident of the building that a man in a white shirt ran down the hallway on the third

floor.

¶9 Christian Lopez was called to testify for the State. His attorney informed the court that

Lopez would invoke his fifth amendment rights if he took the stand. Attorneys for Lopez and

Zambrano argued that Lopez incriminated himself when he testified at Sanchez’s trial and that he

could still be indicted for Gooch’s murder. The State maintained that Lopez’s mere presence at

the murder location was not enough to sustain criminal charges. The trial court disagreed with

the State, finding that Lopez was more than an eyewitness; he went to the apartment complex

with Zambrano and Sanchez, entered the building with them, and left with them. The trial court

granted Lopez the option of invoking his rights, reasoning he could be charged with a crime, and

stating that Lopez had “a real fear and it’s a real possibility, remote–if it’s remote at all–but it

exists.” In response, the State granted Lopez use immunity, and he testified.

¶ 10 Lopez stated that he was hanging out with Zambrano, Sanchez, Michael Ortiz, and

another man on May 21, 2009. They were at Latoya Ortiz’s house drinking alcohol and smoking

cannabis beginning at 2 p.m. Around 4 p.m., Lopez got a ride to his girlfriend’s house, where he

stayed until 9 p.m. Lopez and another friend then returned to Latoya’s house, where Sanchez,

Zambrano and Michael Ortiz were still partying. The group continued drinking and smoking

until sometime between 11:30 p.m. and midnight when Lopez, Sanchez, Zambrano, and Michael

Ortiz went to McDonald’s. Zambrano drove Sanchez’s gray Cutlass sedan. Sanchez rode in the

front seat, Lopez sat in the backseat behind the driver, and Ortiz sat behind Sanchez. Lopez was

intoxicated.

¶ 11 After they left the McDonald’s drive through, they went to the Larkin Village apartment

complex. Zambrano parked in front and he and Sanchez exited the vehicle. Zambrano told

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Lopez to get out of the car too. Ortiz stayed in the backseat. Zambrano opened the hood and

Lopez assumed he grabbed something from under it. Lopez exited the Cutlass and followed

Zambrano and Sanchez toward the apartment building. They were buzzed in, and as they

entered the building, Zambrano tried to hand Lopez a gun, which he refused to take. They

walked up the stairs. Lopez waited on the landing in the stairwell while Zambrano and Sanchez

continued to the third floor. Lopez heard a bang about five minutes later and fled, running back

to the Cutlass.

¶ 12 Lopez identified the Cutlass pulling into the lot on the security camera video from 1009

Lois Place. He also identified himself, Sanchez and Zambrano getting out of the vehicle and

running back to it several minutes later. He described Zambrano and Sanchez as “real amped up,

real hyped.” He went to Zambrano’s house and spent the night. According to Lopez, he was too

scared to sleep and walked home first thing in the morning. He went voluntarily to the police

station later in the day on May 22.

¶ 13 Lopez was impeached by defense counsel and admitted that he initially told the police

that he was at Latoya’s house, got drunk, woke up at home in bed, and did not remember how he

got home. He did not mention Larkin Village or Zambrano, Sanchez, or Ortiz. He said he

purposefully tried to make it sound like he was not involved in the shooting and that the other

men were the perpetrators. He told the police that Zambrano grabbed something from under the

hood but admitted that he did not see a gun until Zambrano tried to hand one to him in the

apartment building. He described the object Zambrano grabbed from under the hood as

“chrome-figured” and assumed it was a gun. He also told the police he was scared that Sanchez

and Zambrano would kill him. He acknowledged that throughout his questioning by the police,

he tried to make himself an “innocent bystander” and Zambrano and Sanchez “the bad guys.”

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¶ 14 He was also examined regarding bias. Lopez acknowledged he was on probation for an

aggravated driving under the influence (DUI) conviction at the time of Gooch’s murder. Since

that time, he was charged with aggravated driving while license revoked (DWLR) in four cases,

with possible six-year terms of imprisonment for each charge. Three of the charges were

dismissed after he testified in the Sanchez trial and the fourth was reduced to a misdemeanor. At

the time of Zambrano’s trial, Lopez was charged with unlawful use of a weapon by a felon, with

a possible sentence of 10 years in the Department of Corrections (DOC). He did not expect

leniency for his pending charge. He was not charged in Gooch’s murder and the State did not

promise him anything in exchange for his testimony.

¶ 15 A Joliet detective testified that he went to Zambrano’s house on May 22. Zambrano,

Sanchez, Ortiz, and Zambrano’s mother, Norma, were all present. Zambrano was questioned

about the events of May 21 and told the officer he was at a friend named Claudia's house with

Sanchez and Ortiz. The officer did not ask about the early hours of May 22.

¶ 16 A state trooper from Texas testified that he arrested Zambrano after noticing the vehicle

Zambrano was riding in matched a BOLO (be on the lookout) alert. The stop took place

approximately 26 miles from the Texas/Mexico border. Zambrano, whose head was shaved, was

with his mother and grandmother. He did not have identification and said his name was “Juan.”

¶ 17 Norma Zambrano testified on her son’s behalf. The Joliet police searched her home on

May 22 with her consent. Zambrano was home at the time, with his friends Sanchez and Lopez,

whom she knew. On May 27, the police returned with a warrant and told her Zambrano was

charged with murder. He was not home. Later that day, Norma, her mother, and Zambrano left

town at her direction. Zambrano had no choice in the matter. She physically placed him in the

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car and told him to identify himself as “Juan” if asked. She admitted he shaved his own head but

said it was her suggestion.

¶ 18 The security camera video from 1007 Lois Place was played for the jury. It showed

Sanchez running south from the building and into the parking lot. The time frame for the activity

coordinated with the video from 1009 Lois Place, which showed Sanchez entering the frame on

the 1009 Lois Place video. A Joliet detective testified that Hinton identified Sanchez as the man

in the white T-shirt in both videos. He also said that it appeared Sanchez was holding something

at his side in both videos.

¶ 19 The defense rested and both sides presented closing arguments. Defense counsel argued

that Sanchez alone murdered Gooch and that Zambrano was not present for the murder. He

pointed to the videos which did not show either Lopez or Zambrano entering a building but did

show Zambrano arriving back at the car ahead of Sanchez. Counsel replayed the videos for the

jury and argued that Lopez was the only witness to identify Zambrano as participating in the

murder. Counsel recited jury instructions regarding witness credibility and argued that Lopez

was not a credible witness. He suggested that Lopez received leniency on his prior charges and

hoped to do so for his pending charge in exchange for his testimony.

¶ 20 The jury returned a guilty verdict on the murder count and also found that Zambrano or

an accomplice was armed with a firearm. Zambrano filed posttrial motions arguing that Lopez’s

testimony was so incredible that a reasonable factfinder could not have found him credible.

Defense counsel argued that Lopez was “completely discredited on the stand,” and had “extreme

bias,” which was “shown by what he had to gain by testifying in the manner which he did.” The

trial court denied Zambrano’s motion, and following a hearing, sentenced him to a 45-year term

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of imprisonment. Zambrano filed a motion to reconsider sentence, which the trial court also

denied. Zambrano appealed.

¶ 21 ANALYSIS

¶ 22 The issue on appeal is whether Zambrano received ineffective assistance of counsel. He

challenges defense counsel’s representation regarding counsel’s failures to impeach Lopez with

evidence that he received immunity to testify and to tender a jury instruction for accomplice

testimony. Zambrano asserts that defense counsel’s failures to present evidence that Lopez was

granted use immunity to testify and to tender the jury instruction on accomplice testimony

constitute objectively unreasonable performance and that the unreasonable performance

prejudiced him and denied him a fair trial, violating his constitutional rights.

¶ 23 A criminal defendant is entitled to effective assistance of trial counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Trial counsel is ineffective where (1) his

performance was deficient and (2) the deficient performance prejudiced the defendant such that

he was denied a fair trial. Strickland v. Washington,

(1984); People v.

Albanese,

(1984). Deficient performance is demonstrated by showing that

counsel’s performance fell below an objective standard of reasonableness and prejudice is shown

by establishing that there is a reasonable probability that, but for counsel’s deficient

performance, the outcome of the proceeding would have been different. Strickland,

.

¶ 24 Use immunity provides immunity to a witness in a criminal case regarding “any

information directly or indirectly derived from the production of evidence from the witness.”

725 ILCS 5/106-2.5(b) (West 2008). The State can seek a grant of use immunity for a witness

who has refused or is likely to refuse to testify on the basis of his fifth amendment rights. People

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v. Ousley,

(2009). Counsel’s failure to impeach a witness is generally

considered a matter of trial strategy and will not support a claim of ineffective assistance of

counsel. People v. Salgado,

(1994). Where counsel completely fails to

use significant impeachment evidence to impeach a key witness, such conduct may not be sound

strategy and may constitute ineffective assistance. Salgado,

. A

defendant may rebut the presumption of trial strategy by showing that counsel’s failure to

impeach a witness was so unreasonable that no effective defense attorney would have pursued

the strategy. People v. Jones,

.

¶ 25 Counsel may render ineffective assistance for failing to tender the jury instruction on

accomplice testimony. People v. Campbell,

(1995). The jury

instruction provides:

“When a witness says he was involved in the commission of a crime with the

defendant, the testimony of that witness is subject to suspicion and should be considered

by you with caution. It should be carefully examined in light of the other evidence in the

case.” Illinois Pattern Jury Instructions, Criminal, No. 3.17 (4th ed. 2000) (hereinafter,

IPI Criminal 4th No. 3.17).

The instruction should be given when there is probable cause to believe the witness, not the

defendant, was responsible for the crime as a principal or as an accessory under an accountability

theory, despite his denial of involvement. People v. Caffey,

(2001). A person

may be charged as an accomplice where he participated in the crime in some part or united with

the principal knowingly, voluntarily, and with common interest. People v. Morrow,

(1999) (quoting People v. Winfield,

(1983)).

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¶ 26 A person is not accountable by his mere presence at the scene of the crime or his

acquiescence in the criminal act. Morrow,

. An accomplice must

participate in some part, perform some act, or owe a duty to the person in danger to make him

responsible to prevent the crime. Caffey,

. Accomplice testimony, even when

uncorroborated, may be sufficient to convict. People v. Wilson,

(1977).

¶ 27 The testimony of accomplices should be viewed with suspicion and accepted only with

great caution, especially where the witnesses were promised leniency or where the testimony was

induced with a grant of immunity. People v. Simpson,

. Where

the accomplice testifies, “strategic reasons for not requesting [the accomplice-witness

instruction] typically have eluded the courts.” People v. Davis,

(2004).

¶ 28 Lopez was granted use immunity after he initially stated that he would invoke the fifth

amendment if he was required to testify. In the discussion regarding the potential invocation of

Lopez’s fifth amendment rights, the State argued Lopez had no fifth amendment rights because

his testimony would not incriminate him, asserting that Lopez was not charged after he spoke to

the police the day after Gooch’s murder or after he testified without immunity at Sanchez’s trial

in 2011. The State also argued that Lopez was not offered any leniency or deals for crimes he

subsequently committed or for which he was later charged. Attorneys for both Lopez and

Zambrano argued that Lopez was not charged with a probation violation although he admitted to

breaking the terms of his probation when he testified in 2011. Four later unrelated charges for

DWLR were prosecuted by a special prosecutor and resulted in dismissal of three charges and

reduction of one to a misdemeanor. There was no evidence of any deal and or that the special

prosecutor never contacted the State regarding a deal with Lopez.

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¶ 29 During cross-examination of Lopez, defense counsel impeached Lopez with his prior

inconsistent statements to the police during his initial interview. Lopez was also examined about

bias regarding the criminal DWLR charges he faced after the murder, and their disposition,

including dismissal and reduction of charges, which took place after his testimony at the Sanchez

trial. Defense counsel also used the general jury instructions regarding witness credibility to

portray Lopez as a noncredible witness. Throughout the proceedings, the defense asserted that

Lopez was a liar, whose testimony was impeached by his prior inconsistent statements and the

videos from the apartment complex, that his pending cases were resolved favorably after his

prior testimony and that he was not a believable witness.

¶ 30 Defense counsel attacked Lopez’s credibility on a number of fronts but he did not

question Lopez regarding the use immunity. On this record, we are unable to determine whether

defense counsel’s failure to raise the issue of Lopez’s use immunity was the result of trial

strategy or ineffective assistance of counsel. The record is inadequate as to the facts needed to

decide either prong of Zambrano’s ineffective assistance claim. People v. Durgan,

(2004) (quoting Massaro v. United States,

(2003)).

Accordingly, we determine whether defense counsel was ineffective for failing to raise Lopez’s

use immunity is an issue better determined on postconviction review. People v. Parker,

(2003) (“ ‘Where the disposition of a defendant’s ineffective assistance of

counsel claim requires consideration of matters beyond the record on direct appeal, it is more

appropriate that the defendant’s contentions be addressed in a proceeding for postconviction

relief, and the appellate court may properly decline to adjudicate the defendant’s claim in his

direct appeal from his criminal conviction.’ ” (quoting People v. Burns,

(1999))).

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¶ 31 We next address Zambrano’s contention that counsel was ineffective for failing to submit

a jury instruction on accomplice testimony. We agree. The evidence at trial and the reasonable

inferences that can be drawn from the evidence establish probable cause that Lopez acted as an

accomplice. Both the State and the defense offered video evidence corroborating the sequence of

events in the parking lot before and after Gooch was shot. The videos show Lopez exiting the car

with Zambrano and Sanchez, with Zambrano retrieving something from under the hood of the

Cutlass. By his own testimony, and corroborated in part by the videos, Lopez entered the

apartment building with them. He stated that he waited on the landing while the two other men

continued to the next floor, where Gooch was shot. The video shows that he returned to the car at

the same time as Zambrano and with the same sense of urgency. Zambrano placed something

under the hood before getting back into the car. At no time did Lopez separate himself from the

criminal activity, and by his own admission, he participated in it. The grant of use immunity to

Lopez is further support of his role as an accomplice. There would be no need to immunize

Lopez if he was not implicated in the shooting and involved in some fashion as an accomplice.

We can ascertain no viable strategy for counsel’s failure to submit the instruction. We thus

consider that counsel’s failure to tender the accomplice-witness instruction amounted to deficient

performance.

¶ 32 Zambrano has also established he was prejudiced by counsel’s deficient performance.

Because accomplice testimony is suspect, especially here, where Lopez was testifying under a

grant of use immunity, the jury should have been instructed that it should carefully scrutinize

Lopez’s testimony in light of his role as an accomplice. Lopez’s testimony was detrimental to

Zambrano in that it created the inference that Zambrano was the shooter, or at least acted in

concert with the shooter. The jury could have found Lopez’s testimony, even the uncorroborated

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portions, sufficient to convict Zambrano. It was the only evidence establishing Zambrano’s

participation. These circumstances, coupled with the fact that defense counsel embraced the

strategy that Lopez could not be trusted, reinforce the need for the accomplice witness

instruction. There is no reasonable purpose for leaving out the instruction.

¶ 33 Counsel’s failure to submit an instruction on accomplice testimony prejudiced Zambrano

by depriving the jury of critical information it needed to evaluate Lopez’s testimony. Because

counsel’s performance was deficient and prejudiced Zambrano, we find that defense counsel’s

failure to submit a jury instruction on accomplice testimony deprived Zambrano of effective

assistance of counsel.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court of Will County is reversed

and the cause remanded.

¶ 36 Reversed and remanded.

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