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People v. Rosario

OPINION FILED SEPTEMBER 15, 1978.

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

v.

IGNACIO ROSARIO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. R. EUGENE PINCHAM, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial defendant was convicted of murder, attempt armed robbery and conspiracy to commit armed robbery and murder. He was sentenced to terms of 20 to 50 years for murder, and 4 to 12 years for attempt armed robbery with no sentence given for conspiracy. On appeal he contends that the verdict was the product of cumulative errors rather than by proof beyond a reasonable doubt.

It appears that shortly after midnight on an evening in February 1976, three masked men entered the Trackside Lounge and one of them announced a "stickup." At this point William Heaton, the tavern owner, ran into an adjoining room to press the burglar alarm. While there he heard gunfire and upon his return noticed that the three men had left; that Donald Wells was lying on the floor with a chest wound; and that there was a hole in the front door of the lounge.

The State's testimony also established that the masks of the three men were made from bedsheets, that the smallest of the men was carrying a rifle, that Donald Wells started toward them with a cue stick in his hand, and that Wells was shot by the rifle carrier after which the men fled.

The key witness for the State was 16-year-old Eugene Hernandez, an admitted heroin user who testified that defendant came to his apartment at 6:30 that evening carrying a 30-30 carbine rifle and asked Hernandez to keep the rifle for him but before giving up the weapon, defendant fired a shot in the air from the back porch of the apartment; that later in the evening Peter Gonzales, Rufino Santiago, defendant and his brother, Rafeal Rosario, were in the apartment (where Hernandez lived with Iris Nieves and their three children); and that Santiago suggested "sticking up" the Trackside Lounge which was located about a block away. Santiago and defendant left to look over the tavern and when they returned shortly afterwards, all five of the men made masks for use in the planned robbery. When Gonzales, Santiago and Hernandez each refused a request of defendant to carry the rifle, he handed it to Rafeal and told him to carry it. The five men left the apartment wearing the masks and went to the lounge where defendant kicked open the door and Rafeal, who was carrying the rifle, announced a robbery. They were standing in the doorway but had not entered when a man inside came toward them carrying a pool cue stick and closed the door, at which point defendant said, "cap, cap" (cap is a Spanish word for shoot) and Rafeal then fired a shot through the door and all five of them ran from the scene.

When he, Rafeal and defendant arrived in front of his apartment, defendant made a statement that some Young Lords were in a car that was passing at that time, and Rafeal fired two shots at the car. They all eventually returned to the apartment, where they gave their masks to Iris who was told to hide them, and one of the men put the rifle under a crib mattress.

Iris Nieves testified that the five men were in the apartment early that evening and all left wearing masks with Rafeal carrying a rifle. Later she heard two shots fired in front of her house and soon afterwards the five men returned with two other men named Lerch and Garcia. She hid the masks in her fireplace.

Police officers testified to finding a .30-caliber shell casing in front of the tavern, two similar casings on the street in front of the apartment and another on the back porch. Admitted in evidence was a rifle found by another officer in a car driven by defendant and it was established that the three shell casings were fired from that rifle, but the bullet causing the death of Wells was unsuitable for a ballistics comparison.

OPINION

Defendant asserts that his identification as a participant in the offenses was predicated primarily on the testimony of Hernandez, and he maintains that because of improper bolstering of the credibility of Hernandez, the jury's verdict was not based on proof beyond a reasonable doubt.

He first argues that error was committed when Hernandez was permitted to testify that he had given a statement shortly after his arrest which corroborated his trial testimony.

• 1 Generally, a witness may not testify as to statements he made out of court for the purpose of corroborating his testimony given at trial relative to the same subject matter. (People v. Powell (1973), 53 Ill.2d 465, 292 N.E.2d 409; People v. Buckley (1976), 43 Ill. App.3d 53, 356 N.E.2d 1113.) But where it is charged that his story is a recent fabrication or that he has some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist or before the effect of the account could be foreseen is admissible. People v. Powell; People v. Clark (1972), 52 Ill.2d 374, 288 N.E.2d 363.

• 2 On direct examination Hernandez testified that some two months after his arrest he agreed to testify on behalf of the State in return for his release from jail and a dismissal of the charges against him. On cross-examination Hernandez answered that at the time of his arrest he was a heroin user and that he had no heroin during his two months in jail prior to his release. On redirect, over defense counsel's objections, he was permitted to state that he gave a statement to the police on the day of his arrest which was substantially the same as his testimony given at trial. We see no error in the admission of this testimony.

Defense counsel by his cross-examination implied that defendant was a heroin user when arrested and that his testimony was fabricated two months later in order to gain his release so that he could indulge his heroin habit. Although the State had initially elicited from Hernandez that he had agreed to testify truthfully to obtain his release and a dismissal of the charges, defense counsel's interrogation concerning his heroin use and the fact that the drug was not available in jail suggested a motive for the witness to testify falsely, thus ...


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