                                          2016 IL App (3d) 140178

                                   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.”



                                                      5

¶ 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




                                                      6

       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, 466 U.S. 668, 687 (1984); People v.

       Albanese, 104 Ill. 2d 504, 525 (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, 466 U.S. at

       687-88, 694.

¶ 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, 235 Ill. 2d 299, 316 (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, 263 Ill. App. 3d 238, 246 (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, 263 Ill. App. 3d at 246-47. 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, 2012 IL App (2d) 110346, ¶ 82.

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

       accomplice testimony. People v. Campbell, 275 Ill. App. 3d 993, 999 (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, 205 Ill. 2d 52, 116 (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, 303 Ill. App.

       3d 671, 678 (1999) (quoting People v. Winfield, 113 Ill. App. 3d 818, 828 (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, 303 Ill. App. 3d at 679. 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, 205 Ill. 2d at 117. Accomplice testimony, even when

       uncorroborated, may be sufficient to convict. People v. Wilson, 66 Ill. 2d 346, 349 (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, 2013 IL App (1st) 111914, ¶ 21. Where

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

       instruction] typically have eluded the courts.” People v. Davis, 353 Ill. App. 3d 790, 795 (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, 346 Ill. App.

       3d 1121, 1142 (2004) (quoting Massaro v. United States, 538 U.S. 500, 504-05 (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, 344 Ill.

       App. 3d 728, 737 (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, 304 Ill. App. 3d 1, 11

       (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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