APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
On a Saturday night in December, 1970, the defendant, Francisco Gamboa, killed two men and shot two others in a Chicago tavern. He was indicted for the crimes and a jury found him guilty of three of them: the murder of Frederico Medina Reyes and the attempt murder and aggravated battery of Medina's brother, Gilberto Reyes. Gamboa was sentenced to 28 to 75 years in the penitentiary for the murder and 5 to 10 years for the aggravated battery. No sentence was imposed for the attempted murder.
• 1 Nine issues and many sub-issues are raised on appeal. One is whether the defendant was proved guilty beyond a reasonable doubt; another questions the closing argument of the prosecutor; five allege miscellaneous trial errors and two concern the length of the sentences. Of the latter, the one pertaining to the excessive penalty for aggravated battery can be disposed of readily. Aggravated battery is a Class 3 felony and the minimum sentence for a felony of this class cannot be greater than one-third of the maximum sentence. (Ill. Rev. Stat. 1973, ch. 38, pars. 12-4(d), 1005-8-1(c)(4).) In no event, therefore, can the defendant's sentence for this offense be more than 3 1/3 years.
The tavern was located on the west side of Racine Avenue. It was a long and rather narrow place, east to west in length and north to south in width. The bar was on the north side, to the right of the Racine Avenue entrance. West of the bar were tables and a booth. Back of the booth was a ladies' washroom and back of that, at the extreme northwest corner of the tavern, was a men's washroom. Immediately in front of the entrance and extending along the south wall almost to the west end of the tavern were additional booths and tables.
Almost one-half of the area at the extreme west end was taken up by the washrooms. On the night of the shooting a small space to the south and east of these rooms was set aside for dancing. A pool table which normally occupied this space was moved into a corner formed by the west wall of the building and the south wall of the men's room. In front of the table were chairs for a four-piece orchestra. Into the area between the washrooms and the pool table, and the patron tables at the south wall, were crowded four musicians, their instruments and the dancers. It was in this vicinity that the shooting took place.
A large number of witnesses testified at the trial, many with the aid of an interpreter. Although their testimony varied in minor respects and was not always clear, the following is a fair distillation of the 4,231 page record: The tavern was operated by Miguel Aguilar who kept a .38-caliber chromium-plated revolver behind the bar in a drawer next to the cash register. There were about 50 people present shortly after midnight when the first shot was fired. Gamboa and a friend, Raphael Olaguez, were sitting in the last booth on the north wall, just east of the washrooms. Gamboa was armed with a fully-loaded and cocked .45-caliber automatic pistol. Medina and Gilberto Reyes knew Gamboa and Olaguez and talked with them that night. After leaving the men's washroom, Medina stopped at Gamboa's booth and spoke with him before rejoining his brother Gilberto at the bar. Later they left the bar, walked to the rear and requested Marcario Cantu, the orchestra leader, to play a number they wanted. Gamboa then stepped from his booth and asked Cantu to play one for him. The Reyes brothers did not return to the bar and Gamboa did not return to his booth. He sat down on the pool table, put his feet on Cantu's amplifier and offered to buy the musicians a drink. While the two songs were being played, Gilberto and Olaguez had a conversation. It apparently was not friendly for Olaguez took off his jacket, put it on a table and they walked toward the front door.
They had not gone far when a shot was fired. Medina fell to the floor, face up with his arms outstretched. Cantu turned in the direction of the shot and saw Gamboa standing in the entrance of the men's room. His arm was elevated and a gun was in his hand. Miguel Aguilar, who had been behind the bar, raced through the crowd; as he reached the washrooms Gamboa shot him two times. He fell face down on top of Medina. Customers rushed out the front door. A waitress called the police and someone called Miguel's brothers, Rudy and Joe Aguilar, who were conducting a dance in a union hall across the street. Gamboa stepped out of the washroom and asked Olaguez, who had come back, "Where is the other one?" He apparently was referring to Gilberto who was hurrying to his fallen brother. When Gamboa saw Gilberto he raised his gun and shot him in the chest. Gilberto managed to grab Gamboa and struggled with him. As Gilberto fell to his knees Gamboa exclaimed, "Let me finish you, mother fucker" and shot him a second time. Gilberto slumped to the floor. A patron, Maria Santana, threw herself on top of him. Although Cantu had warned his fellow musicians to take cover, he did not do so himself and he was wounded by a bullet from Gamboa's gun.
Gamboa's automatic jammed and he dropped it just before a bartender forced him to the floor. Rudy and Joe Aguilar came into the tavern. Rudy screamed when he saw his dead brother and asked the bartender holding Gamboa who did it. Gamboa spoke up and said he did not know, but Rudy was told and he kicked Gamboa and pistol whipped him with a revolver he brought from the dance hall.
Policemen poured into the tavern. They found Cantu sitting on a bar stool bleeding from his chest, Gilberto between two tables bleeding from his chest and stomach, and Gamboa on the floor bleeding from his forehead. The body of Miguel Aguilar was lying face down on top of the face-up body of Frederico Medina Reyes. As Aguilar's body was moved, a .38-caliber chrome-colored revolver slid to the floor. The wounded were taken to hospitals and the dead were taken to hospitals and then to the morgue. Medina's death was caused by a bullet which went through his face into his brain. Aguilar was also shot in the face. His death was caused by two bullet wounds in his brain.
The police officers found that the .45 automatic was cocked and an expended shell was jammed in the slide. One live bullet was in the magazine clip of the automatic and one was recovered from Gamboa's pocket. Four spent .45 automatic shells were found on the floor of the men's washroom and another on the floor near the ladies' washroom. Two .45 bullets were recovered from the south wall opposite the men's room; one was found in Cantu's accordian case, and one near the ladies' washroom. The .38 chrome revolver contained five live bullets and one expended shell. A bullet, apparently fired from this revolver, was imbedded in the north wall of the men's room. In most of his testimony, which was given through an interpreter, Gamboa referred to Medina Reyes, Gilberto Reyes and Miguel Aguilar as "this guy" or "that guy" or "the man," but from the testimony of other witnesses it is reasonably clear whom he meant. He admitted the shooting, but explained it as either unintentional or justified in self-defense. He said he and his close friend Raphael Olaguez went to the tavern and sat in the northwest booth with Mrs. Santana. Gilberto Reyes called out to Olaguez and they spoke together. A few minutes later he noticed Gilberto and Medina standing in front of the musicians and he suggested to Olaguez that if he felt uncomfortable they could move closer to the musicians. They left the booth and sat on the pool table. Medina, Gilberto and Miguel Aguilar came up to them. Gilberto grabbed the lapels of Olaguez' jacket; Olaguez said forget it and Gilberto invited him into the washroom. When Gamboa told them there was no reason to argue, Medina told him not to butt in. Gamboa stood up, his jacket, which he had over his arm, was taken by Medina; Gamboa snatched it back and retreated to the washroom. Gilberto made a derogatory remark to Olaguez; Olaguez removed his jacket and he and Gilberto walked away. Gamboa tried to leave the washroom, but Medina told him not to, took a step forward, pulled out a small pistol and pointed it at Gamboa who then took out his own gun, released the safety and fired. Medina's head jerked back and he fell down. Gamboa said he did not mean to shoot or kill Medina. He was still standing near the doorway of the men's room when Aguilar ran up and hit him and then brought his fist up to hit him again. In doing so, Aguilar struck Gamboa's gun hand and two shots were discharged from his automatic. Aguilar fell on top of Medina. Gamboa said that Aguilar frightened him; he thought the "man might cut me or shoot me." Gilberto than appeared with a .38 chrome revolver in his hand and pointed it at him. He, in turn, pointed his automatic at Gilberto, ran out of the washroom, grabbed Gilberto's hand and bent it back toward his chest; the revolver went off and Gilberto was shot by his own gun. Gilberto pulled on Gamboa's arm as he fell causing Gamboa's automatic to discharge. Gilberto continued to hang on to him so Gamboa hit him on the head with his gun. He testified that he lost consciousness when Rudy Aguilar hit him over the head several times with a pistol and the next thing he remembered was being on a cart in a hospital.
Gamboa's testimony that he was unconscious was disputed by the police officers. They said he walked unaided from the tavern to a police vehicle and talked to them in the vehicle and at the hospital. One of the officers who spoke to him at the hospital testified that Gamboa said that he and his friend Raphael, whose last name he did not know, were in the tavern. Gamboa went to the washroom and was struck on the head as he entered. He turned and took a gun away from a man behind him and shot two or three people with it. As he walked toward the front of the tavern he was struck again on the back of the head. The police came and saved him. His testimony about losing consciousness was also contradicted by the doctor who attended him at the hospital. The doctor stated that although Gamboa was in pain, he was alert, oriented as to time and space and his recent memory was intact.
Gamboa's testimony about the events in the tavern not only conflicted with the statement he made at the hospital and with the testimony of the other eyewitnesses, it also conflicted with the physical facts. Gamboa placed guns in the hands of both Medina and Gilberto Reyes: an automatic pistol in Medina's hand and a chrome pistol in Gilberto's. No automatic, other than Gamboa's own, was recovered. A .38 chrome revolver was recovered, but this was found not where Gilberto fell and not in his possession, but under the body of Miguel Aguilar, the tavern owner to whom it belonged. Medina fell on his back with arms outstretched and palms turned up; no gun was in his hands and none dropped to the floor when he fell. Maria Santana, who had been sitting with Gamboa, said Medina had no gun. Marcario Cantu, the leader of the orchestra, saw the entire affray; he said Medina had none. No witness, other than Gamboa himself, testified that either of the Reyes brothers was armed. The .38 revolver had been fired and the discharged bullet lodged in the wall of the men's washroom, 4 feet from the floor. No one saw Aguilar with his gun, but he owned it and kept it behind his bar and it fell to the floor when his body was moved. It is a reasonable inference that he had the gun when he ran up to Gamboa after Medina had been shot, and that he fired at Gamboa who was still standing in the doorway of the washroom. This appears to have been the conclusion of the jury which absolved Gamboa of the Aguilar homicide.
• 2 Evaluating the credibility of witnesses, weighing their testimony and determining where the truth lies is the function of the jury. The testimony of eyewitnesses seldom agrees in every detail and testimonial discrepancies in lengthy trial are not uncommon. They would not be unexpected where sudden and rapid gunfire occurs in a crowded tavern. Conflicting evidence of itself does not establish reasonable doubt, and only when the evidence is so unsatisfactory that it raises such a doubt will the verdict of a jury, approved by the presiding judge, be disturbed. (People v. Disharoon (1972), 5 Ill. App.3d 42, 282 N.E.2d 506.) Gamboa, however, goes further than citing discrepancies he asserts that the testimony of Cantu was fabricated and because of its falsity it should be rejected by this court and his own version of the shooting accepted. The burden of proving this type of allegation is on the defendant; merely pointing to contradictory testimony does not warrant a conclusion that the disputed testimony was perjured. (People v. Harris (1973), 55 Ill.2d 15, 302 N.E.2d 1; People v. Nuccio (1973), 54 Ill.2d 39, 294 N.E.2d 276.) In essence, Gamboa's argument in support of his accusation is that Cantu's testimony is false because it conflicts with his own. This conflict, and the minor discrepancies in the testimony of other witnesses, totally fails to substantiate the assertion of perjury.
• 3 The evidence established that the defendant was guilty of murder, not manslaughter. The shooting of Medina was deliberate, and the direct and natural result of the defendant's voluntary act was the destruction of another's life. (People v. Brooks (1964), 52 Ill. App.2d 473, 202 N.E.2d 265.) A finding of voluntary manslaughter would be warranted only if the evidence established that the defendant was seriously provoked or believed, albeit unreasonably, that he shot in self-defense. (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(b).) The record does not support an inference that a purpose of self-defense, reasonable or unreasonable, prompted the shooting of Medina Reyes. While Gamboa implied that such was his reason, he never testified that he feared for his life or thought he was in danger. He said that Aguilar, whom he shot two times, frightened him and he thought Aguilar might shoot him, but he made no such references to Medina who, according to the testimony of all disinterested witnesses, was unarmed. Nor was there evidence of a sudden and intense ...