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People v. Rivera

SEPTEMBER 24, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GILBERT RIVERA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 15, 1975.

Defendant-appellant, Gilbert Rivera, hereinafter referred to as defendant, was tried before a jury and convicted of murdering one Francis Chuck Madsen. Defendant was sentenced to a term of 20 to 60 years' imprisonment. His appeal raises the following arguments:

(1) The trial court erred in admitting into evidence a photograph of the victim;

(2) The prosecutor's conduct and the court's rulings thereon denied the defendant a fair trial;

(3) The evidence was insufficient to establish the defendant's guilt beyond a reasonable doubt; and

(4) The sentence of 20 to 60 years imprisonment was excessive.

On November 25, 1972, Francis Chuck Madsen was stabbed to death by the defendant in a Chicago tavern. Margaret Bura, Raphael Colon, Carlos Flores, and Ishmael Claudio, were in the tavern at the time of the stabbing. Colon, Flores, and Bura testified at the trial.

Colon, the only witness to the whole occurrence, testified that Madsen was seated at the bar. Defendant walked in with another man, ordered a drink, and walked over to Madsen. He raised his left hand and Madsen raised his hands to cover himself. Defendant then stabbed Madsen in the stomach with a knife held in defendant's right hand. Colon testified that Madsen was unarmed and made no attempt to strike the defendant. Colon further testified that Madsen, having been stabbed, screamed, walked away from the defendant, grabbed a bar stool, and said, "Man, I never do nothing to you." Madsen then put the bar stool down, asked Bura to call an ambulance and fell onto the floor.

Neither Flores nor Bura actually saw the stabbing. However, Flores did see Madsen pick up a bar stool. Flores also saw defendant hold a knife and ask Madsen if he "wanted some more." Margaret Bura was bartending and watching television when she noticed the victim pick up a bar stool and tell the defendant, "I never done nothing to you."

• 1 Defendant contends that it was error to admit into evidence People's Exhibit No. 1, which was a photograph of the victim taken at the morgue. Defendant argues that the trial court abused its discretion in admitting into evidence a prejudicial and inflammatory photograph when it had no probative value.

"`Where photographs are relevant to establish any fact in issue * * * they are admissible in spite of the fact that they may be of a gruesome nature.'" (People v. Henenberg (1973), 55 Ill.2d 5, 13, 302 N.E.2d 27, 31; People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208; People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783.) In People v. Dee (1975), 26 Ill. App.3d 691, 325 N.E.2d 336, a photograph of the victim's body with a claw hammer embedded in the back of the skull demonstrated the most likely cause of death and had probative value in its depiction of the amount and manner in which the victim's blood had been splattered about the immediate area.

The photograph in the instant case depicts one stab wound in the victim's abdomen. The jury had already heard testimony bearing upon the actual stabbing and the defendant's claim of self-defense. We are of the opinion that the photograph's probative value outweighs any inflammatory affect it may have had upon the jury. It was not error for the court to admit this exhibit.

Defendant raises numerous contentions that the prosecutor's conduct and the court's rulings thereon denied him a fair trial. Defendant relies on People v. Nuccio (1969), 43 Ill.2d 375, 253 N.E.2d 353, to show error in the prosecution's inferences of defendant's violent character. In Nuccio, the prosecution persisted through cross-examination to make unsupported insinuations which could have seriously impeached the credibility of the defendant and his witnesses. In the case at bar, Colon and Bura were asked to explain the inconsistencies between their statements to the police and their trial testimony. Colon told the police he did not see the stabbing. Bura told the police she was in the back room at the time of the occurrence. Both testified that they were afraid of the defendant and did not know Madsen had died at the time of their statements to the police. The prosecutor attempted ...


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