APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of murder and sentenced to a term of 25 to 50 years. He presents the following issues for review: (1) whether he was proved guilty beyond a reasonable doubt; and (2) whether the acquittal of a co-defendant based on identical evidence requires the reversal of his conviction.
At approximately 12:30 a.m. on June 20, 1971, 10 teenagers were returning home from a dance in two cars one following the other. After some passengers had been dropped off, the lead car entered the intersection of 24th Street and Sacramento Boulevard and completed a right turn onto 24th Street. As the second automobile began negotiating the same right turn, shots rang out, the driver (Jose Velasco) slumped forward, and the car veered to the right at a 45-degree angle jumping the curb on the southwest corner and crashing into a building. Before the police or an ambulance came to the scene, the lead car returned and Jose was transported to the hospital in this vehicle. At 1:15 a.m. he was pronounced dead as the result of a bullet wound to the left side of his head. Ernesto Villagomez, his two sisters (Rachel and Rebecca) and Jose's uncle (Angel Diaz) were passengers in the car driven by Jose, and they were interviewed by Officer Keating, a Chicago Police Department homicide investigator, in the hospital parking lot as they awaited news of Jose's condition.
At trial, Ernesto testified that he was seated directly behind Jose and, upon hearing the first shot coming from a northeasterly source, he turned to his left. In the artificial light provided by two streetlights, he observed two young men standing at the northeast corner of the intersection one, whom he identified as defendant, was leveling a handgun at the Velasco vehicle and the other, identified as Raul Ortiz, *fn1 was holding a handgun which was pointed in a downward direction. Just before the vehicle collided with the building, Ernesto observed defendant fire a second shot. Thereafter, he saw defendant and Ortiz fire five to six more rounds some of which struck the car. In his direct testimony, Ernesto stated that defendant and Ortiz fired at the car while standing on the curb. On cross-examination, he was impeached by testimony given at the preliminary hearing that the gunmen stood on the sidewalk as they fired. Some portions of the sidewalk and curb were separated by bushes, but there was no testimony indicating that Ernesto's view was obstructed by the bushes.
Ernesto testified that when questioned by Keating in the hospital parking lot, he identified defendant by his nickname ("Rayo") and by describing him. When he discussed with Keating the fact that defendant was a member of a group called the Latin Kings who had previously been charged with a murder occurring at a school dance, Keating indicated that he also knew defendant from a prior arrest. Although Ernesto was acquainted with defendant and Ortiz for a 2 1/2 year period prior to the incident in question, he did not give Ortiz's name or nickname to Keating but described him as being Mexican or Puerto Rican with straight black hair, 5'6" in height, weighing 160 pounds, and wearing a white "T" shirt.
On cross-examination, Ernesto testified that he was friendly with some members of the Latin Kings and another group called the Bishops, but he was not a member of either organization. He further said that he and defendant had a discussion, but not an argument, about wearing a certain sweater around school. This sweater was not described, except that Ernesto stated that it did not bear the name "Bishops."
Rachel, Rebecca and Angel testified for the State to substantially the same account of the shooting as did Ernesto. Rachel and Angel identified only defendant as an assailant, but Rebecca identified him and Ortiz as the gunmen.
Keating was called as a defense witness and testified that on the night in question Rachel, Rebecca and Angel told him that they had ducked down in the car during the attack and did not see who was firing at them; that Ernesto told him defendant had fired at the car from the mouth of an alley some 100 feet east of the intersection; and that he was not given the name or nickname of Ortiz who was referred to by Ernesto as the "second gunman" and the "unknown individual." Furthermore, Keating noted that the witnesses were very emotional and upset at the time of the interview; that the interview and his report concerning it were his only involvement with the case; and that he learned for the first time at trial that Rachel, Rebecca and Angel claimed to have seen one or both of the gunmen. Those three witnesses had previously testified that they told Keating they could identify one or both gunmen.
Defendant and Ortiz each presented alibi defenses, and defendant and several defense witnesses testified that prior to and after the shooting defendant was clad in a loud pink shirt and trousers. It is undisputed that he wore pink trousers at 4 p.m. on June 20 when he appeared in a lineup. Ernesto had testified that at the time of the occurrence defendant was wearing a black shirt and yellow trousers.
Defendant also testified that a couple of days prior to the incident in question, he saw Ernesto wearing a "Bishop" sweater while attending Harrison High School and ordered him not to wear it again. According to defendant, an argument ensued and he slapped Ernesto, who stated he would get even with defendant for the slapping.
After closing arguments, the trial court noted that for the reasons stated below it was unwilling to accept much of the testimony elicited by both sides:
"To begin with, I will begin not with Ernesto but with the other three witnesses. For the State's Attorney to say that they weren't impeached either by conduct or by their statement is to flay [sic] right in the face of the interview with Detective Keating who certainly was shown to have no motive to lie. The witnesses were impeached.
* * * This was a single identification and single witness case. This case is certainly gang related. The State witnesses will not have you believe it was gang related and only until Ernesto was forced into saying it was, that there was something about jackets and sweaters and gangs, does the truth begin to come out.
Looking at the State's witnesses after Keating has testified, certainly the three witnesses, Rachel, Rebecca, and Angel Diaz are virtually destroyed as far as their identifications. I believe without explanation, at least if the witness had said, yes, we said we ducked but we really saw it, we were ...