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People v. Olmos

OPINION FILED DECEMBER 12, 1978.

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

v.

JESUS OLMOS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

The defendants, Eloy Cordova *fn1 (Eloy), Gustavo Cordova (Gustavo), and Jesus Olmos (Olmos), were indicted for armed robbery, attempt murder, aggravated battery causing great bodily harm, and aggravated battery with a deadly weapon. Following a jury trial in the circuit court of Cook County, defendant Eloy was found guilty of armed robbery and was sentenced to four years to four years and a day imprisonment. Defendant Gustavo was found guilty of armed robbery and aggravated battery causing great bodily harm, and was sentenced to four years to four years and a day for armed robbery, and one to three years for aggravated battery causing great bodily harm, both sentences to run concurrently. Defendant Olmos was found guilty of armed robbery and aggravated battery causing great bodily harm. Judgment was entered only on the armed robbery charge, and Olmos was sentenced to four years to four years and a day imprisonment.

On appeals consolidated for review *fn2 defendants contend the following: (1) they were not proved guilty of the crimes beyond a reasonable doubt; (2) they were denied their Sixth Amendment right to confrontation; (3) prosecutorial misconduct denied them due process of law and a fair trial; (4) the trial court erred in not permitting the defendant Eloy to testify to intention, motive, or belief; (5) the trial court erred in not permitting defendants to perfect impeachment of the victim; (6) the trial court erred in permitting identification testimony by the victim admitted as evidence; (7) the trial court erred in permitting identification testimony by the arresting officer admitted as evidence; and (8) they were denied their Sixth Amendment right to trial before an impartial jury. In addition, defendants Eloy and Gustavo contend the following: (9) the trial court erred when it failed to voir dire the jury after learning of an unauthorized communication by defendant Eloy; and (10) the trial court erred when it failed to sua sponte submit a definitional instruction to the jury.

The alleged armed robbery occurred in the early morning hours of October 1, 1974. The victim testified that he worked as a stable hand and lived in Morton Grove, Illinois. On September 30, 1974, he received a paycheck in the amount of $213 which he cashed for a fee of about $1. He then bought $27 worth of groceries. Later that evening, he and his cousin took a cab to a bar in Morton Grove where they had two beers. At about 12:30 a.m. they left and took a cab to the Bohemia Tavern at 1337 West 18th Street in Chicago. After ordering a drink, the victim went to the washroom. Defendant Olmos tried to take his wallet from his back pocket as he walked by the bar, at which time he told Olmos to keep away from him, proceeded to the washroom, and then returned to his table.

Shortly thereafter, the three defendants and another man approached the victim's table and Gustavo attempted to strike him. In order to protect himself, the victim stated he pushed Gustavo and then left the tavern with his cousin, crossed 18th Street, and walked eastward. The victim stated that while walking, someone grabbed the back of his jacket. Upon turning, he saw Gustavo and also saw three other men standing there, two of the men he identified in court as defendants Olmos and Eloy. The victim's cousin went to a nearby restaurant. Gustavo then knocked the victim to the ground while Olmos whipped him several times with a long chain. While the victim was on the ground, Olmos took his wallet and walked away with the other two defendants.

On cross-examination, the victim admitted stating at the preliminary hearing that it was Gustavo who whipped him with the chain and explained that he was confused by the question when asked at the preliminary hearing.

The victim testified that he followed the men demanding the return of his wallet. According to the victim, Eloy turned around and fired a gun at him. On cross-examination it was brought out that the victim did not know if Eloy shot directly at him or not. After the shot was fired, he went to the restaurant where his cousin had gone to call the police. Before doing so he saw a police car, ran to it, pointed to defendants, and said, "those guys robbed me * * * be careful because one of them has a gun on him * * * they took $200 out of my wallet."

The victim got into the squad car and drove with the officers to defendants. When the officers placed defendants under arrest, the victim jumped out of the police car and struck Olmos.

At the police station the victim stated he had two marks on his back that were not "real bad," a mark on the left side of his eye, and his back pants pocket was ripped.

Officer Kent of the Chicago Police Department testified for the State, that on October 1, 1974, at approximately 2 a.m., he and his partner received a call over the police radio that men were fighting at 1324 West 18th Street. En route he observed four men about one-half block from that address. He identified three of the four men as the defendants. He then proceeded to the address and stopped across the street from the Bohemia Tavern. The victim ran up to the car and pointed to the men Kent had observed and said, "Those guys, they robbed me. Be careful. One of them got a gun." Kent noticed the victim was bleeding from his left eye. The officer testified that he pursued the defendants with the victim and shouted at them to halt. Three of the four men stopped, but Eloy continued walking at a fast pace. Kent observed Eloy reach into his pocket, pull out a gun, and throw it over a fence into a vacant lot. Eloy then turned around and stopped.

At the police station, Kent stated that he recovered $200 from Eloy's shirt pocket, seven $20 bills and six $10 bills, and $7 from his wallet. He also recovered a chain belt from Olmos which he had wrapped around his waist. Kent stated that he observed several welts, 12" to 18" in length, on the victim's back.

About 45 minutes after the incident, Kent went back to the scene and retrieved the gun Eloy had thrown over the fence, and found a round in the chamber ready to be fired and a spent cartridge casing north of the closest alley to 1324 West 18th Street. No ballistic tests were performed on this casing. Kent's testimony as to the places where he recovered these items did not correspond with the places noted on the inventory slip he had prepared. The officer stated that the address on the inventory slip was incorrect. Kent also testified that he ran a registration check on the gun and found it was not registered.

Defendant Eloy testified in his own behalf. He stated that he owned the Bohemia Tavern, as well as a body shop, a parking lot, and two buildings; that he had been a special officer of the Mexican police and a lieutenant of the special police of commercial bankers; that he worked for the State of Illinois in narcotics investigation; and that for the past five years and presently he was working for the Federal narcotics department. Eloy testified that on September 30, 1974, a tenant paid him $100 in ten- and twenty-dollar bills for rent, and that he put this money in his shirt pocket. The tenant, called as a defense witness, confirmed this fact. Eloy stated that later that night he went to the Bohemia Tavern where he met his brother Gustavo, and defendant Olmos. Eloy testified that the victim entered the bar at about 12:30 a.m.; that the victim approached Olmos and started caressing his hair; and that Olmos said something and then the victim walked toward the band requesting some songs. Later he observed an argument between the victim and the band.

Eloy stated that Gustavo and Olmos left the tavern a few minutes after the victim. Soon afterward Eloy was informed that there was a fight outside. Eloy observed altercations between Gustavo, the victim, Olmos, and the victim's cousin. Eloy heard the victim say something (the substance of which he was not allowed to testify to at trial), and Eloy fired his gun into the air. He demonstrated to the jury how he fired the gun down toward the ground. He stated that he did not fire the gun at the victim, nor did he intend to kill anyone, that he carried a gun because he had been threatened in his work with the Federal Government, and he also carried large amounts of money.

After the shot, the fighting stopped and Eloy, Gustavo, and Olmos proceeded to the corner of 18th Street and Blue Island. When the police arrived about 10 minutes later, they yelled at him to stop. Eloy stated that he threw his gun over a fence and stopped. He testified that at the time he was arrested he had $100 in his shirt pocket, about $70 in his wallet, and about $38 in his front pants pocket. He stated that he never saw anyone take the victim's wallet.

Defendant Olmos testified that he and Gustavo went to the Bohemia Tavern, and while sitting at the bar, the victim came up behind him, pulled his hair, and asked him how much he charged to go to bed. Olmos stood up and asked the victim if he knew the difference between a man and a woman, to which the victim made some remark and walked away. Olmos testified that he did not see the victim go to the washroom and never attempted to take his wallet.

Olmos and Gustavo left the tavern a few minutes after the victim and saw him standing outside with several others. The victim approached Olmos and held a beer bottle to Olmos' face. On cross-examination, Olmos stated that the victim broke the bottle at his feet. Olmos testified that Gustavo stepped in to prevent the fight, but that the victim pushed Gustavo and started fighting with him while the cousin started fighting with Olmos. Olmos stated that the victim had a knife and Gustavo took off his leather belt and hit the victim with it in order to defend himself. A shot was fired and the victim and his cousin stopped fighting and went into the restaurant across the street. Olmos then walked away with Gustavo and Eloy. Olmos denied hitting the victim with his chain belt and denied taking his wallet.

Jesus Padilla, one of the band members at the Bohemia Tavern, testified that the victim had requested they play some songs for him, but he did not pay because he said he had no money.

Defense witness, James Scott, a statistician for the City of Chicago assigned to the gun registration unit, testified that the gun Officer Kent recovered from the scene was registered with the City of Chicago by defendant Eloy 10 months prior to the date of the incident.

Defendant Gustavo did not testify.

I.

Defendants initially contend they were not proved guilty of the crimes beyond a reasonable doubt.

A.

Defendants maintain that the testimony of the victim when viewed in its entirety is replete with inconsistencies and is so improbable as to raise a reasonable doubt of defendants' guilt, citing People v. Coulson (1958), 13 Ill.2d 290, 297, 149 N.E.2d 96. The court in Coulson stated that where the testimony is contrary to the laws of nature or universal human experience, it is not bound to believe the witness. Defendants point out several reasons why the victim's story should not be believed, placing emphasis on its contention that the victim by his own testimony could not have been robbed of $200.

The evidence indicated that the victim received a paycheck in the amount of $213 which he cashed at a currency exchange for about $1. He spent $27 for groceries, took several cab rides, and drank beer in two different taverns. However, defendant testified that his cousin paid the cab fares and paid for his drinks. Defendant also testified to being robbed of six $10 bills and seven $20 bills. This testimony was corroborated by Officer Kent who testified to recovering those exact denominations of money from Eloy's shirt pocket. There was no evidence presented to indicate how the victim would have known Eloy was carrying that amount of money in those exact denominations. Although Eloy offered an explanation as to why he had that amount of money, the jury chose not to believe him.

Defendants contend that it is incredible to believe they would commit an armed robbery in their own community in the middle of a main thoroughfare in front of a restaurant. Defendants also point out that they did not leave the vicinity when they first saw the police car, nor did Eloy attempt to dispose of the incriminating evidence, the $200.

• 1 It is not unreasonable to assume that one would commit a crime in his own neighborhood. (People v. Hampton (1st Dist. 1968), 103 Ill. App.2d 57, 66, 243 N.E.2d 371.) The record indicates that the incident took place at about 2 a.m., and the victim testified that Eloy was standing "on the side of the wall" when he fired the gun. Officer Kent testified that Eloy did not heed his first order to halt but kept walking quickly, and although not disposing of the $200, he did throw his gun over a fence before surrendering to the police.

• 2 Defendants refer to other inconsistencies reflecting on the credibility of both the victim and Officer Kent. It is the function of the jury to weigh the evidence, judge the credibility of the witnesses, and determine factual matters in a conflicting set of circumstances. (People v. Dillon (1st Dist. 1975), 28 Ill. App.3d 11, 19, 327 N.E.2d 225; People v. Wade (5th Dist. 1977), 51 Ill. App.3d 721, 726, 366 N.E.2d 528.) Where the evidence on an issue is conflicting but legally sufficient if the prosecution's witnesses are believed, the question is for the trier of fact. (People v. Carpenter (1963), 28 Ill.2d 116, 122, 190 N.E.2d 738.) The testimony of a single witness, even if it be that of a crime victim and even if it is contradicted by the accused, is sufficient to convict if that testimony is positive and credible. (People v. Daily (1968), 41 Ill.2d 116, 120, 242 N.E.2d 170.) Only where the evidence is so improbable as to raise a reasonable doubt of guilt will a reviewing court disturb the jury's determination of guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313.) In our opinion there is sufficient credible evidence to sustain the convictions.

B.

Defendants Olmos and Gustavo contend there was no evidence presented indicating the victim suffered great bodily harm and therefore their convictions of aggravated battery were not proved beyond a reasonable doubt.

Defendants rely on the victim's testimony that the marks on his back were not "real bad," lack of evidence at trial as to bleeding near the victim's eye, and the victim's failure to seek medical attention. Defendants argue that great bodily harm connotes an injury of a much more grievous and serious character than that implied by ordinary battery.

• 3 This court has said that the term "great bodily harm" is not susceptible to precise legal definition. What constitutes great bodily harm is a question of fact for the jury's determination. (People v. Smith (1st Dist. 1972), 6 Ill. App.3d 259, 264, 285 N.E.2d 460.) The question is not what the victim did or did not do to treat the injury inflicted, but what injuries he did in fact receive. (People v. Carmack (3d Dist. 1977), 50 Ill. App.3d 983, 985, 366 N.E.2d 103.) The victim testified that he was whipped with a long chain belt on his back. He demonstrated to the jury the manner in which this was done, and the jury had an opportunity to view the chain belt. Contrary to defendants' contention, Officer Kent testified that he noticed the victim was bleeding from his left eye when he ran up to the car. Kent also ...


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