SECOND DIVISI ON June 22, 2010

No. 1-07-3245 THE PE OPLE OF THE STATE OF ILLI NOIS

Plaintiff-Appellee,
v. HECT OR CO RTEZ, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 02 CR 30236 Hon ora ble Ricky Jones, Judge Presiding.

JUSTICE KARNE ZIS delivered the opinion of the court: Defendant appeals fromhis conviction for first degree m urder and argues that his sixth am endme nt right to confront w itnesses was violated. For the following reasons, we affirm def

endant’s conviction.

FACTS The dead body of Joshua Siguenza, “Tun Tun,” was found in Ronan Park in the early morning of July 26, 2 002. Defendant w as prosecuted for three counts of m urder in relation to Tun Tun’s death. Chicago police officer Jeremy Gom ez testified that he was the first to arrive on1-07-3245

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the scene. He a nd his partner determ ined that the victim w as dead and waited for the evidence technician. Officer Gom ez testified that Ronan Park was k nown turf o f the Lawrence and Kedzie faction of the Latin Kings st reet gang. Marie “Vicki” Adam e and her sister Vilma “Veronica” testified for the State. B oth testified that at the tim e of the shooting, they w ere associated w ith the Latin Kings. On July 25, 2002, they w

ent to the liquor store with Rub y Castillo and purchased liquor. They later met up with Gordo and Tun Tun. They walked to Ronan Park . While they were sitting at a picnic table, Cucuy (A ntonio Martinez) and Tetoz (defendant) approached. They got up to walk aw ay. Vicki saw

defendant was twirling a gun around. As she walked aw ay, she heard the m en arguing and then heard gunshots. She turned and saw

sparks near defendant. She heard four or five shots as she ran away. Veronica testified that she did not see defend ant with a gun but saw a white tshirt wrapped around his right hand. When she heard a gunshot, she t urned and saw defendant standing on the picnic table, w ith Martinez beside him, and Tun Tun under the table. Veronica did not see sparks but did hear four or five m ore shots. Several days later, Vicki received a call from defendant, w ho told her to keep the incident to herself. Neither Vicki nor Veronica wen t to the police to report w hat they
saw. Both were later picked up by police and taken to the police station. There, both Vicki and Veronica identified photographs of defendant and M artinez. Paulscha Joseph, also know as “Little Sm ash,” testified that he was a form er Latin King and becam e a governm ent informant following an arrest. On Octobe r 8,1-07-3245

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2002, Joseph m et with several high ranking m embers of the Latin Kings, including Antonio Martinez, at a res taurant. Joseph w as assigned to dispose of tw o guns for the gang, one of w hich was the m urder weapon in this case. On October 15, 2002, J oseph went to Martinez’s unc le's house, where M artinez handed over the gun used in this case. In a recorded conv ersation published to the jury, J oseph asked M artinez who w as shot w ith the gun. Martinez responded, “Tun Tun.” Joseph asked M artinez if he was the o ne who “sm oked” him and Martinez responded “Yeah.” When Joseph asked w hy, Martinez responded that he “had problems w ith this motherfuc ker.” Joseph left w ith the gun and gave it to federal agents. On October 17, 2002, J oseph drove defendant hom e from a gang m eeting. During the ride, the conversation turned to Tun Tun’s shooting. Joseph recorded th e conversation, w hich was subs equently played for the j ury. Joseph aske d defendant who “did it” and defendant replied “m e, bro” because Tun Tun w as “talkin shit.” Joseph asked how

ma ny timesdefendant shot Tun Tun and de fendant responded “five,” not six, shots. Joseph asked defe ndant “[Y]ou shot him all five times?” and defendant replied, “[Y]eah.” Defendant then indicated that he“left him in the park.” S hortly after this conversa tion, defen dant and Martin ez were arrested. Martine z was charged as a co-defendant in this case w ith obstruction of jus tice relating to the gun. The parties stipulated to a portion of a handwritten s tatem ent Martinez m ade to Assistant State’s Attorney Hitt on Novem ber 3, 2002. In this statement , Martinez1-07-3245

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explained that w hen Joseph asked w ho killed Tun Tun, Martinez only told Joseph that he killed Tun Tun because he wanted tobe the “big m an” and to be “respected” and “feared” by Joseph. The parties stipulated to the adm ission of the autopsy photographs a nd the foundation for three bullets that the m edical exam iner would testify “that he recov ered three bul lets from the body of Joshua Sig uenza duri ng the examination.” Detecti ve Graf later testified that a forensic scientist specializing in firearm identification determ ined that the bullets recovered from the victim’ s body were fired from t he gun
recover ed from Mart inez. In addition, t he autop sy repo rt, including atox icology repo rt on the victim, was adm itted over defendant’s obj ection. Defendant prese nted two stipula tions. Fi rst, the parti es stipul ated that pol ice officers would testify that Vicki stated that the th ree girls met w ith Gordo on the wa y to the liquor store. The second stipulation stated that Ve ronica related in her subsequent han dw ritt en s tat em ent , th at G ord o an d Tu n Tu n were sm okin g “w eed ” at thepicn ic table. After hearing all of the evidence, the j ury found defendant guilty of first degree murder while personal ly discha rging a fi rearm. Defendant was sentenced to 45 years’ imprisonm ent. It is from this conviction that defendant now appeals. ANALY SIS Defendant first contends that his right to confrontation was violated when Antonio Martinez’s out-of-court testim onial statements were adm itted at trial.1-07-3245

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Specifically, defendant contends that pursua nt to Crawford v. Washi ngton , 541 U.S. 36 , 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), it was improper for the t rial court to allow the State to introduce M artinez’s handw ritten “repudiation” of his prior confession without requiring Martinez to take t he stand. Prior to trial, defendant filed a motion in limi ne to allow Joseph to testify to the hearsay adm ission Martinez m ade to him as a statem ent against penal interest. According to the m otion, Joseph collected a gun from Martinez and asked him, “Who got sho t w ith this?” M artinez re plied, “Tun Tun .” Jos eph asked, “You shot Tun Tun?” Martinez responded, “Yeah.” The court granted the m otion, finding that it was satisfied tha t th e state m ent

“was m ade on acirc um sta nce tha t pr ovid es cons ider

able
ass ura nce s of

relia bility .” D efe nse cou nse l indicate d th at h e did not inte nd to ca ll Martinez, even though he would be available to testify, because he m ay “disavow the statem ent” and “point to m y guy a s the s hooter. ” Later, when the attorneys w ere in chambers , the court announced t hat it had another opportunity to look at the sta tem ent Martinez m ade to Joseph and m ight reconsider its position on the mot ion in limi ne . Specifically, the court indicated it was concerned w hether the term “sm oked” would be cons trued as synonym ous with the word "shot. " In discussing wh ether Martinez intended the w ord “sm oked” to m ean "killed," the State offered that M artinez gave a handw ritten statem ent to Assistant St ate ’s At

tor ney (A SA ) Hit

t on Novem ber

3, 2 002 , w her

ein M art inez

sta ted tha t hetold Joseph that he killed Tun Tun only because he w anted to be the big m an, to be1-07-3245

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respected and fea red. After further discussio n, the State requested that Martinez’s handwritten statem ent to ASA Hitt be adm itted to explain why he m ade the earlier admission to Jo seph. Specifically, the State reques ted to adm it a portion of the handwritten statement of Antoni o Martinez that re ads:

"A nto nio M art inez

sta testha t on or a bou t Oc tob er 1 1, 2 002 , S m ash did
com e by his house. He s tates that Sm ash cam e into his apartment to get the gun. He states he gave the gun to S mas h. He states Sm ash asked him , 'who go[t] sm oked with the gu n?' He states he told Sm ash that Tune-Tune [sic] got killed with the gun. He states Sm ash asked him who killed Tune-Tune [sic]? He sta teshe told S m ash tha t hekille d Tu ne- Tun e [s ic]. He sta teshe told Sm ash he killed Tune-Tune [sic] only because he wanted to be the big m an, and he wa nted to be respected an d feared by Sm ash.” Defense counsel asked for som e time to think about the State’ s request. Defense counsel then asked the court, “Is the Court advising m e that if I don’t agree to that entire portion that counsel read, that the Court w ill not all ow that as evidence?” The court responded: “Well, Counsel, I think I just need to rule - - decide my ruling on the statem ent. Wi thout that either, I don’t think that’s necessa ry, but if you all have an agreement to the contrary, I’ ll let you all work tha t out.” Defense counsel then res ponded “ I don’t have an obj ection” an d that h e agreed to “tha t paragra ph.” Defense counsel then agreed to stipulate to the adm ission of Martinez’s handw ritten statem ent.1-07-3245

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Defendant now

claims that t he adm ission of Martinez’s handw ritten “repudiation” violated his sixth am endme nt right to confrontation. U.S . Const., am end. VI. In Crawford v. Washi

ngton , 541 U.S. 36 , 158 L. Ed. 2d 177, 124 S. Ct . 1354 (2004), the Suprem e Court held that the confrontation clause barred out-of-court testim onial statem ents unless the declarant w as unavailable to testify and the defendant had a prior opportunity to cross-exam ine the declarant. Crawfo rd , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The St ate arg uestha t w e ne ed n ot r

eac h th e m erit s of

def end ant ’s clai m because defendant has waived this issue w here he stipulated to the adm ission of Martinez’s prior statem ent to ASA Hitt. A crim inal defendant may waive, by st ipulation, the need to prove all or part of the cas e that the State has brought against him

. People v. Polk , 19 Ill. 2d 310, 315 (1960). “[D]efens e counsel m ay waive a def endant’s right of confrontati on as long as the defendant does no t object and the decisi on to stipul ate is a
m atter of trial tactics

and st rategy. ” People v. Campbell , 208 Ill. 2d 203, 217 (2003). A def end ant is p rec lude d fr

om attack ing o r op pos ing a ny f acts tow hich he h as p rev ious ly stipulated. People v. Gi bson , 287 Ill. App. 3d 878, 880 (1997)

. The State argues that

defendant did not obj ect and that couns el’s decision to waivedefenda nt’s r ight to c onfront ation was a m atter of trial strat egy w here thecourt indicated its reluctance to admit M artinez’s statem ent to Joseph w ithout admitting Martinez’s state ment

to ASA Hitt.1-07-3245

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Defendant does not d ispute that he did not obj ect to counsel’s w aiver of his right of confrontation. Defendant argues vehem ently however, that counsel’s decision to waive his ri ght to confront Marti nez was not sound trial strategy. Interesti ngly, defenda nt doesnot ch allenge coun sel’s ef fectiven ess und er Stric kland v. Washi

ngton , 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Instead, asappellate counsel indicated at oral argument in this case, defendant argues that counsel’s actions need only be c onsidered under Campbell , 208 Ill. 2d at 217. Campbell requires that counsel’s deci sion to waive defen dant’s righ t of confrontati on be “leg itimate tria l tactics or pruden t trial stra tegy.” Campbell , 208 Ill. 2d at 221. It is well established that we cannot “get into counsel’s head” to determ ine why he m ade the decisions he m ade in determining his strategy. H owever, w e note that counsel told the trial court that his defense was that Martinez s hot Tun Tun. Additionally, defense counsel indicated to the court that he had no intention of calling Martinez because he w as afraid Martinez w

ould “disavow the statement” and “point to my guy as the shoote r.” Clearly counsel had a strategy and hav ing Martinez testify, for whatever reas on, did not coincide with that strate gy. Perhaps M artinez’s written statem ent would do less dam age to defendant’s case than Martinez tes tifying from the stand. We cannot say that counsel’s decision to stipulate to M artinez’s statem ent was anything other than sound trial strategy. C onsequently, we cannot consider defendant’s claim on its m erits.1-07-3245

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Defend ant nex

t arguesthat t he trial cour t’s de cision to a llow theautops y report to be adm itted over defense counsel’s obj ection, without the S tate producing its author for cr oss-examina tion , viol ated hi s rig ht to con front the witne sses aga inst him. U.S. Const., am end. VI; Ill. Const. 1970, art. I, § 8 ; Crawford v. Washi ngton , 541 U.S. 36 , 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). In support, defen dant cites Melendez -Diaz v. Massachusett

s , 557 U.S. __ , 174 L. Ed. 2d 314, 12 9 S. Ct. 2527(2009). In Melendez -Diaz , the defendant w

as charged with distributing and trafficking cocaine. To prove the substance was cocaine, the prosecution subm itted three “certificates of analysis” that showed the weight of the seized ba gs and t hat thesubst ance fo und ther ein wa s coca ine. The c ertificates wer e sworn to before a notary public as required by Mas sachusetts law

. Melendez -Diaz , 557 U.S. at __, 174 L. Ed. 2d at 320, 129 S. Ct . at 2531. Defendan t objected to the admission of these cert ifica tes at trial , but the court over ruled the objection because Massachusetts law all ows the use of these certifi cates as prima faci e evidence of the analyzed substance’s weight and com position. A jury found the defendant guilty. Defendant challenged his conviction on appeal and argued that the adm ission of the certificates violated his sixth am endme nt right. The appeals court rej ected his claim. The state suprem e court declined to hear his case. Melendez -Diaz , 557 U.S. at

___, 174 L. Ed. 2d at 321, 129 S. Ct . at 2532. The United States S upreme Court found the certificates, w hich were “quite plainly affidavits”, to be “functionally i dentical to live, in-court testimony, doing1-07-3245

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‘precise ly wh at a w itness do es on direc t exam ination.’ ” Melendez -Diaz , 557 U.S. at ___, 174 L. Ed. 2 d at 321, 129 S. Ct. at 2532, quoting Davis v. Washingt

on , 547 U.S. 813, 830, 165 L. E d. 2d 224, 242, 126 S . Ct. 2266, 2278 (2006). Because the certificat es were cons idered tes tim onial under Crawfo rd , the prosecuti on should ha ve been req uired to c all the analys ts at t rial, absent a show ing that t he analys ts were unavailable to testify at trial and the defendant had a prior opportunity to cross-ex amine them

. Melendez

-Diaz , 557 U.S. at

__, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532. Accordingly, the adm ission of the certificates as evidence against the defendant was error. Melendez

-Diaz , 557 U.S. at

__, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532. Defendant suggests

that the autopsy report adm itted in this case is similar to the certificates adm itted in Melendez -Diaz. H oweve r, d efe nda nt o ver looks th e fa ct t hat this court has previously held that autopsy reports are business records and do not implicate Crawfo rd . See People v. Leach , 391 Ill. App. 3d 161 (2009); People v. Moore , 378 Ill. App. 3d 41, 50 (2007); s ee also Crawfo rd , 541 U.S. at 56, 158 L. Ed. 2d at 195-96, 124 S. C t. at 1367 (business records are, and historically have been, nontestimon al). W hile both Leach and Moore predate Melendez -Diaz , w e are nevertheless unpersuaded that M e le n d e z- Di a z upsets our prior holdings. The Me le nd ez-D ia z court specifically noted that the analysts “affidavits” did not qualify as traditional or official business records. Melendez -Diaz , 557 U.S. at

__, 174 L. Ed. 2d at 321-22, 129 S. C t. at 2532.1-07-3245

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W e acknow ledge that, despite its finding that the affidavits did not qualify as traditional business records, the Melendez -Diaz court did note that even if the af fidavits did qualify as traditional or offi cial business records, “their authors would be su bject to confrontation nonetheless” because they were “prepared sp ecifically for use at petitioner’ s trial” and w ere “tes tim ony aga inst petition er.” M e le n d e z- Di a z, 557 U.S. at __, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2538-40. D espite defendant’s argum ent to the con tra ry, thefac

ts o f th is c ase do n ot s upp ort a fi ndin g th at t he a uto psy rep ort is subject to Crawfo rd

. The certificates at issue in Melendez -Diaz were prepared and admitted s olely to est ablis h an elem ent

of t he o ffe nse for

w hich def

end ant w as c har

ged and sta ndin g tr ial, i.e ., wheth er the items

seized from the defendant w ere in fact cocaine, and if so, how
muc h cocaine was present. Those factswent directly to the defendant’s guilt or innocence. Conversely, the autopsy report in this case w as created for the “adm inistration of

[the m edical exam iner’s] a ffairs.” M e le n d e z- Di a z, 557 U.S. at __, 174 L. Ed. 2d at 321-22, 129 S. Ct. 2538-40. Furtherm ore, the autopsy report w as not admitted toestablish or prove som e fact at trial and did not lend itself to establishing defendant’s guilt or innocence. Defenda nt’s theory at trial was that Martinez s hot and killed the victim. The cause and m anner of the victim ’s death w ere not contested. Furthermore, even if the adm ission of the autopsy report w ithout the testim ony of the m edical exam iner was error, it was harm less beyond a reasonable doubt. People v. Stechly , 225 Ill. 2d 246, 30 2 (2007) ( Crawfo rd violations are subject to a harmless-error1-07-3245

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analysis.) Again, defendant did not contest that Tun Tun was shot and killed. Defendant onl y claimed that he was not the shooter. Despite defend ant’s assertio ns, Vicki testified that defendant had a gun in his hand prior to the shoot ing. In addition, defendant confessed to Joseph that he s hot and killed Tun Tun. Therefore, any possible error did not contribute to defendant's conviction. Based on the foregoing, the judgm ent of the trial court is affirmed. Affirme d. CUNNINGH AM, P .J., and HOFFM AN, J., concur.1-07-3245

13 REPORTER OF DECISIONS - ILLINOIS APP ELLATE COURT

THE PE OPLE OF THE STATE OF ILLI NOIS,

Plaintiff-Appellee, v. HECTOR C ORTEZ, Defendant-Appellant.
No. 1-07-3245 Ap pella te C our

t of Illin ois First District, Second Division June 22, 2010
JUSTICE KARNE ZIS delivered the opinion of the court. CUNNINGH AM, P .J., and HOFFM AN J., co ncur. Appeal from the Circui t Court of Cook County. The Honorable Ricky Jones, JudgePresiding.

For AP PE LLA NT, Mic hae l J. Pe lletie r, O ffice of theSt ate Ap pella te D efe nde r (P atr icia Unsinn, Deputy

Defend er, Sh awn O'Toole, A ssistan t Appe llate Defen der) For APPELL EE, Anita M. Alvare z, State' s Attorn ey of Coo k County (James E. Fitzger ald, Annette N. Col lins, Susan R. Schierl Sul livan , Assistant State's Attorn eys)