                                                                    SECOND DIVISION
                                                                        June 22, 2010




No. 1-07-3245

THE PEOPLE OF THE STATE OF ILLINOIS                     )    Appeal from the
                                                        )    Circuit Court of
                    Plaintiff-Appellee,                 )    Cook County
                                                        )
v.                                                      )    No. 02 CR 30236
                                                        )
HECTOR CORTEZ,                                          )    Honorable
                                                        )    Ricky Jones,
                    Defendant-Appellant.                )    Judge Presiding.




      JUSTICE KARNEZIS delivered the opinion of the court:

      Defendant appeals from his conviction for first degree murder and argues that

his sixth amendment right to confront witnesses was violated. For the following

reasons, we affirm defendant’s conviction.

                                          FACTS

      The dead body of Joshua Siguenza, “Tun Tun,” was found in Ronan Park in the

early morning of July 26, 2002. Defendant was prosecuted for three counts of murder

in relation to Tun Tun’s death.

      Chicago police officer Jeremy Gomez testified that he was the first to arrive on
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the scene. He and his partner determined that the victim was dead and waited for the

evidence technician. Officer Gomez testified that Ronan Park was known turf of the

Lawrence and Kedzie faction of the Latin Kings street gang.

      Marie “Vicki” Adame and her sister Vilma “Veronica” testified for the State. Both

testified that at the time of the shooting, they were associated with the Latin Kings. On

July 25, 2002, they went to the liquor store with Ruby 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 (Antonio Martinez) and Tetoz (defendant)

approached. They got up to walk away. Vicki saw defendant was twirling a gun

around. As she walked away, she heard the men 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 defendant with a gun but saw a white t-

shirt wrapped around his right hand. When she heard a gunshot, she turned and saw

defendant standing on the picnic table, with Martinez beside him, and Tun Tun under

the table. Veronica did not see sparks but did hear four or five more shots.

      Several days later, Vicki received a call from defendant, who told her to keep the

incident to herself. Neither Vicki nor Veronica went to the police to report what 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 Martinez.

      Paulscha Joseph, also know as “Little Smash,” testified that he was a former

Latin King and became a government informant following an arrest. On October 8,


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2002, Joseph met with several high ranking members of the Latin Kings, including

Antonio Martinez, at a restaurant. Joseph was assigned to dispose of two guns for the

gang, one of which was the murder weapon in this case.

       On October 15, 2002, Joseph went to Martinez’s uncle's house, where Martinez

handed over the gun used in this case. In a recorded conversation published to the

jury, Joseph asked Martinez who was shot with the gun. Martinez responded, “Tun

Tun.” Joseph asked Martinez if he was the one who “smoked” him and Martinez

responded “Yeah.” When Joseph asked why, Martinez responded that he “had

problems with this motherfucker.” Joseph left with the gun and gave it to federal

agents.

       On October 17, 2002, Joseph drove defendant home from a gang meeting.

During the ride, the conversation turned to Tun Tun’s shooting. Joseph recorded the

conversation, which was subsequently played for the jury. Joseph asked defendant

who “did it” and defendant replied “me, bro” because Tun Tun was “talkin shit.” Joseph

asked how many times defendant shot Tun Tun and defendant responded “five,” not

six, shots. Joseph asked defendant “[Y]ou shot him all five times?” and defendant

replied, “[Y]eah.” Defendant then indicated that he “left him in the park.” Shortly after

this conversation, defendant and Martinez were arrested. Martinez was charged as a

co-defendant in this case with obstruction of justice relating to the gun.

       The parties stipulated to a portion of a handwritten statement Martinez made to

Assistant State’s Attorney Hitt on November 3, 2002. In this statement, Martinez


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explained that when Joseph asked who killed Tun Tun, Martinez only told Joseph that

he killed Tun Tun because he wanted to be the “big man” and to be “respected” and

“feared” by Joseph.

         The parties stipulated to the admission of the autopsy photographs and the

foundation for three bullets that the medical examiner would testify “that he recovered

three bullets from the body of Joshua Siguenza during the examination.” Detective

Graf later testified that a forensic scientist specializing in firearm identification

determined that the bullets recovered from the victim’s body were fired from the gun

recovered from Martinez. In addition, the autopsy report, including a toxicology report

on the victim, was admitted over defendant’s objection.

         Defendant presented two stipulations. First, the parties stipulated that police

officers would testify that Vicki stated that the three girls met with Gordo on the way to

the liquor store. The second stipulation stated that Veronica related in her subsequent

handwritten statement, that Gordo and Tun Tun were smoking “weed” at the picnic

table.

         After hearing all of the evidence, the jury found defendant guilty of first degree

murder while personally discharging a firearm. Defendant was sentenced to 45 years’

imprisonment. It is from this conviction that defendant now appeals.

                                          ANALYSIS

         Defendant first contends that his right to confrontation was violated when

Antonio Martinez’s out-of-court testimonial statements were admitted at trial.


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Specifically, defendant contends that pursuant to Crawford v. Washington, 541 U.S. 36,

158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), it was improper for the trial court to allow

the State to introduce Martinez’s handwritten “repudiation” of his prior confession

without requiring Martinez to take the stand.

       Prior to trial, defendant filed a motion in limine to allow Joseph to testify to the

hearsay admission Martinez made to him as a statement against penal interest.

According to the motion, Joseph collected a gun from Martinez and asked him, “Who

got shot with this?” Martinez replied, “Tun Tun.” Joseph asked, “You shot Tun Tun?”

Martinez responded, “Yeah.” The court granted the motion, finding that it was satisfied

that the statement “was made on a circumstance that provides considerable

assurances of reliability.” Defense counsel indicated that he did not intend to call

Martinez, even though he would be available to testify, because he may “disavow the

statement” and “point to my guy as the shooter.”

       Later, when the attorneys were in chambers, the court announced that it had

another opportunity to look at the statement Martinez made to Joseph and might

reconsider its position on the motion in limine. Specifically, the court indicated it was

concerned whether the term “smoked” would be construed as synonymous with the

word "shot." In discussing whether Martinez intended the word “smoked” to mean

"killed," the State offered that Martinez gave a handwritten statement to Assistant

State’s Attorney (ASA) Hitt on November 3, 2002, wherein Martinez stated that he told

Joseph that he killed Tun Tun only because he wanted to be the big man, to be


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respected and feared. After further discussion, the State requested that Martinez’s

handwritten statement to ASA Hitt be admitted to explain why he made the earlier

admission to Joseph. Specifically, the State requested to admit a portion of the

handwritten statement of Antonio Martinez that reads:

              "Antonio Martinez states that on or about October 11, 2002, Smash did

       come by his house. He states that Smash came into his apartment to get the

       gun. He states he gave the gun to Smash. He states Smash asked him,

       'who go[t] smoked with the gun?' He states he told Smash that Tune-Tune [sic]

       got killed with the gun. He states Smash asked him who killed Tune-Tune [sic]?

       He states he told Smash that he killed Tune-Tune [sic]. He states he told

       Smash he killed Tune-Tune [sic] only because he wanted to be the big man,

       and he wanted to be respected and feared by Smash.”

       Defense counsel asked for some time to think about the State’s request.

Defense counsel then asked the court, “Is the Court advising me that if I don’t

agree to that entire portion that counsel read, that the Court will not allow that as

evidence?” The court responded: “Well, Counsel, I think I just need to rule - - decide

my ruling on the statement. Without that either, I don’t think that’s necessary, but if you

all have an agreement to the contrary, I’ll let you all work that out.” Defense counsel

then responded “I don’t have an objection” and that he agreed to “that paragraph.”

Defense counsel then agreed to stipulate to the admission of Martinez’s handwritten

statement.


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      Defendant now claims that the admission of Martinez’s handwritten “repudiation”

violated his sixth amendment right to confrontation. U.S. Const., amend. VI. In

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the

Supreme Court held that the confrontation clause barred out-of-court testimonial

statements unless the declarant was unavailable to testify and the defendant had a

prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 158 L. Ed.

2d at 203, 124 S. Ct. at 1374.

      The State argues that we need not reach the merits of defendant’s claim

because defendant has waived this issue where he stipulated to the admission of

Martinez’s prior statement to ASA Hitt. A criminal defendant may waive, by stipulation,

the need to prove all or part of the case that the State has brought against him. People

v. Polk, 19 Ill. 2d 310, 315 (1960). “[D]efense counsel may waive a defendant’s right of

confrontation as long as the defendant does not object and the decision to stipulate is a

matter of trial tactics and strategy.” People v. Campbell, 208 Ill. 2d 203, 217 (2003). A

defendant is precluded from attacking or opposing any facts to which he has previously

stipulated. People v. Gibson, 287 Ill. App. 3d 878, 880 (1997).

      The State argues that defendant did not object and that counsel’s decision to

waive defendant’s right to confrontation was a matter of trial strategy where the court

indicated its reluctance to admit Martinez’s statement to Joseph without admitting

Martinez’s statement to ASA Hitt.




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       Defendant does not dispute that he did not object to counsel’s waiver of his right

of confrontation. Defendant argues vehemently however, that counsel’s decision to

waive his right to confront Martinez was not sound trial strategy. Interestingly,

defendant does not challenge counsel’s effectiveness under Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Instead, as appellate counsel

indicated at oral argument in this case, defendant argues that counsel’s actions need

only be considered under Campbell, 208 Ill. 2d at 217. Campbell requires that

counsel’s decision to waive defendant’s right of confrontation be “legitimate trial tactics

or prudent trial strategy.” Campbell, 208 Ill. 2d at 221.

       It is well established that we cannot “get into counsel’s head” to determine why

he made the decisions he made in determining his strategy. However, we note that

counsel told the trial court that his defense was that Martinez shot Tun Tun.

Additionally, defense counsel indicated to the court that he had no intention of calling

Martinez because he was afraid Martinez would “disavow the statement” and “point to

my guy as the shooter.” Clearly counsel had a strategy and having Martinez testify, for

whatever reason, did not coincide with that strategy. Perhaps Martinez’s written

statement would do less damage to defendant’s case than Martinez testifying from the

stand. We cannot say that counsel’s decision to stipulate to Martinez’s statement was

anything other than sound trial strategy. Consequently, we cannot consider

defendant’s claim on its merits.




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       Defendant next argues that the trial court’s decision to allow the autopsy report

to be admitted over defense counsel’s objection, without the State producing its author

for cross-examination, violated his right to confront the witnesses against him. U.S.

Const., amend. VI; Ill. Const. 1970, art. I, § 8; Crawford v. Washington, 541 U.S. 36,

158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).

       In support, defendant cites Melendez-Diaz v. Massachusetts, 557 U.S. __, 174

L. Ed. 2d 314, 129 S. Ct. 2527 (2009). In Melendez-Diaz, the defendant was charged

with distributing and trafficking cocaine. To prove the substance was cocaine, the

prosecution submitted three “certificates of analysis” that showed the weight of the

seized bags and that the substance found therein was cocaine. The certificates were

sworn to before a notary public as required by Massachusetts law. Melendez-Diaz, 557

U.S. at __, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. Defendant objected to the

admission of these certificates at trial, but the court overruled the objection because

Massachusetts law allows the use of these certificates as prima facie evidence of the

analyzed substance’s weight and composition. A jury found the defendant guilty.

Defendant challenged his conviction on appeal and argued that the admission of the

certificates violated his sixth amendment right. The appeals court rejected his claim.

The state supreme 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 Supreme Court found the certificates, which were “quite

plainly affidavits”, to be “functionally identical to live, in-court testimony, doing


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‘precisely what a witness does on direct examination.’ ” Melendez-Diaz, 557 U.S. at

___, 174 L. Ed. 2d at 321, 129 S. Ct. at 2532, quoting Davis v. Washington, 547 U.S.

813, 830, 165 L. Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). Because the

certificates were considered testimonial under Crawford, the prosecution should have

been required to call the analysts at trial, absent a showing that the analysts were

unavailable to testify at trial and the defendant had a prior opportunity to cross-examine

them. Melendez-Diaz, 557 U.S. at __, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532.

Accordingly, the admission 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 admitted in this case is similar to the

certificates admitted in Melendez-Diaz. However, defendant overlooks the fact that this

court has previously held that autopsy reports are business records and do not

implicate Crawford. See People v. Leach, 391 Ill. App. 3d 161 (2009); People v.

Moore, 378 Ill. App. 3d 41, 50 (2007); see also Crawford, 541 U.S. at 56, 158 L. Ed. 2d

at 195-96, 124 S. Ct. at 1367 (business records are, and historically have been,

nontestimonal). While both Leach and Moore predate Melendez-Diaz, we are

nevertheless unpersuaded that Melendez-Diaz upsets our prior holdings. The

Melendez-Diaz 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. Ct. at 2532.




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       We acknowledge that, despite its finding that the affidavits did not qualify as

traditional business records, the Melendez-Diaz court did note that even if the affidavits

did qualify as traditional or official business records, “their authors would be subject to

confrontation nonetheless” because they were “prepared specifically for use at

petitioner’s trial” and were “testimony against petitioner.” Melendez-Diaz, 557 U.S. at

__, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2538-40. Despite defendant’s argument to

the contrary, the facts of this case do not support a finding that the autopsy report is

subject to Crawford.

       The certificates at issue in Melendez-Diaz were prepared and admitted solely to

establish an element of the offense for which defendant was charged and standing trial,

i.e., whether the items seized from the defendant were in fact cocaine, and if so, how

much cocaine was present. Those facts went directly to the defendant’s guilt or

innocence. Conversely, the autopsy report in this case was created for the

“administration of [the medical examiner’s] affairs.” Melendez-Diaz, 557 U.S. at __, 174

L. Ed. 2d at 321-22, 129 S. Ct. 2538-40. Furthermore, the autopsy report was not

admitted to establish or prove some fact at trial and did not lend itself to establishing

defendant’s guilt or innocence. Defendant’s theory at trial was that Martinez shot and

killed the victim. The cause and manner of the victim’s death were not contested.

       Furthermore, even if the admission of the autopsy report without the testimony of

the medical examiner was error, it was harmless beyond a reasonable doubt. People v.

Stechly, 225 Ill. 2d 246, 302 (2007) (Crawford violations are subject to a harmless-error


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analysis.) Again, defendant did not contest that Tun Tun was shot and killed.

Defendant only claimed that he was not the shooter. Despite defendant’s assertions,

Vicki testified that defendant had a gun in his hand prior to the shooting. In addition,

defendant confessed to Joseph that he shot and killed Tun Tun.       Therefore, any

possible error did not contribute to defendant's conviction.

       Based on the foregoing, the judgment of the trial court is affirmed.

       Affirmed.

       CUNNINGHAM, P.J., and HOFFMAN, J., concur.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



THE PEOPLE OF THE STATE OF ILLINOIS,

                    Plaintiff-Appellee,
v.

HECTOR CORTEZ,

                    Defendant-Appellant.


                                     No. 1-07-3245

                               Appellate Court of Illinois
                             First District, Second Division

                                     June 22, 2010


                JUSTICE KARNEZIS delivered the opinion of the court.

                   CUNNINGHAM, P.J., and HOFFMAN J., concur.


                     Appeal from the Circuit Court of Cook County.

                     The Honorable Ricky Jones, Judge Presiding.



For APPELLANT, Michael J. Pelletier, Office of the State Appellate Defender (Patricia
Unsinn, Deputy Defender, Shawn O'Toole, Assistant Appellate Defender)

For APPELLEE, Anita M. Alvarez, State's Attorney of Cook County (James E.
Fitzgerald, Annette N. Collins, Susan R. Schierl Sullivan, Assistant State's Attorneys)




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