APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, the defendant, Carlos Bruno, was found guilty of voluntary manslaughter and sentenced to a term of 5 to 15 years. The defendant's first trial, on a murder charge, resulted in a mistrial. His second trial resulted in a guilty verdict on the charge of voluntary manslaughter, but the defendant's motion for a new trial was subsequently granted. The defendant now appeals from the guilty finding rendered at the close of his third trial. On appeal, the defendant argues (1) the State's evidence did not justify a finding of guilty of voluntary manslaughter and the basis for his conviction was legally erroneous in that the court made an inconsistent finding that he was guilty of both types of voluntary manslaughter; (2) that loss or destruction of material evidence by the State, which was favorable to and requested by the defendant, violated his due process rights; and (3) that the trial court acted in an arbitrary manner in denying the defendant probation and abused its discretion in failing to consider any of the mitigating factors advanced by the defendant.
Gilberto Jiminez was the first witness for the State. Jiminez testified he was at the Newport Restaurant at 2726 West North Avenue in the City of Chicago at approximately 5:30 a.m. on March 28, 1971. He saw the defendant enter the restaurant with two women. One of the women said hello to Hector Herrera who was sitting at a table with the deceased, Felipe Trinidad. The defendant pulled the woman away and the three of them continued to the rear of the restaurant. Shortly thereafter, Herrera and the decedent walked to the cash register and were "kidding" about the bill when the defendant approached them and told the cashier to let him know "if anything happened there." The cashier and the decedent told the defendant that nothing was happening. Jiminez testified that the defendant then tried to slap the decedent, a struggle commenced between them, and they fell to the floor as Herrera tried to break it up.
Jiminez testified that the defendant got up from the floor first, stepped back three or four feet, and pulled out a gun. The defendant shot his gun twice towards the front of the restaurant. Jiminez was wounded in the leg by the second shot and he left the restaurant. When the witness last saw the defendant that night the defendant was trying to make a phone call. Jiminez also testified that he spoke to the defendant at a nightclub in August, 1971. At that time the defendant said he would pay him $3,000 to testify in his favor.
On cross-examination Jiminez said he had not met the defendant prior to the shooting and had not known the defendant was a policeman. He was impeached on the basis of testimony from the first trial where he said he knew the defendant was a policeman. Jiminez' testimony was conflicting as to whether he could see Herrera when the decedent and the defendant were on the floor and as to whether he could see Herrera kicking the defendant.
Abigail Perez' testimony was essentially the same as that of Jiminez. She was at the Newport Restaurant the night of the shooting. She had gone to the ladies' room and when she returned she saw the defendant standing in an aisle pointing a gun at the ceiling. She ducked down and heard two shots fired. After hearing a third shot, she left the restaurant with her friends. She saw the decedent holding his stomach and helped him out the door. Perez saw Nellie Bonano approach the defendant and ask him why he killed the decedent. The defendant kicked her. The defendant was making a phone call at that time. Perez did not know that the defendant was a police officer. Perez went to the hospital after the police arrived and while there saw the defendant make a motion of rubbing his finger across his throat from ear to ear while looking at her and her friends.
On cross-examination Perez said she did not know if Bonano had been pushed or kicked by the defendant as she had only seen her fall.
Rose Lopez' testimony was essentially the same as Jiminez' concerning the initiation of the altercation at the cashier's counter. She was unable to see the two men on the floor but did see Herrera try to pull the decedent off the defendant. She then saw the defendant point a gun at the ceiling and fire a shot. The defendant approached the decedent, put his left arm around the decedent's neck and had his gun pointing towards the decedent's stomach. The defendant fired two more shots. Lopez was unable to see the decedent's hands at that time. The defendant waved his gun around and then went to the telephone. Lopez left the restaurant and Bonano, who left with her, went back inside, said something to the defendant and called him "dirty names." The defendant shoved her to the ground. The defendant came over to where Lopez was kneeling near the decedent and told her to get up or he would shoot. She got up but then returned to get her purse and the defendant pushed her. Lopez did not know the defendant was a policeman until someone screamed that fact after the shooting. Lopez also testified to the gesture the defendant made at the women while they were at the hospital.
Marten Muriel testified that he, too, was at the Newport Restaurant the night of the shooting. Muriel said the decedent had not touched the defendant before the defendant slapped the decedent. Muriel also testified that when the decedent told the defendant that the conversation with the cashier was none of his business, the defendant's response was "Don't get smart with me or I break your ass right now." The decedent asked the defendant to step outside with him and it was at that point that the defendant turned around and slapped the decedent. Muriel also testified that the decedent grabbed the defendant's gun hand before he was shot.
On cross-examination Muriel testified that he did not see the decedent punching the defendant while the decedent was on top of the defendant. He was impeached by his prior testimony from the first two trials where he said the decedent had in fact punched the defendant two or three times while on top of him. Muriel also testified that the decedent had his hand on the defendant's hand, but not on the gun. He was again impeached on the basis of his testimony from the first trial where he said the decedent did have his hand on the gun.
Another eyewitness, Jose Nelson Antonetty, testified for the State. His description of the events surrounding the shooting was essentially the same as that of the other State's witnesses. In addition, he testified that the decedent hit the defendant after the defendant tried to hit the decedent and that the first shot was fired straight ahead rather than into the ceiling.
The witnesses for the defense were Mary Taylor Khollman and the defendant himself. Khollman accompanied the defendant and Frances Torres to the Newport Restaurant on the night of the shooting. She did not see the defendant from the time he left their table to go to the cashier's counter until she saw him on the floor with the decedent on top of him, punching him. Khollman testified there were four or five men, including Herrera, standing around and kicking the defendant while the decedent was on top of him. When the defendant got up from the floor he pulled his gun out, announced he was a police officer and told all of them to leave. He then fired a shot into the ceiling. The decedent went towards the defendant and they began struggling again. The decedent grabbed the defendant's wrists. Two to four shots were fired as the two men struggled.
On cross-examination Khollman's testimony from the first trial was introduced, at which time she said she did not remember what Herrera was doing when he was standing near the defendant.
The defendant testified that after the cashier told him there was no trouble, he was returning to his seat when Khollman yelled "Watch it, Bruno." He turned around and saw the decedent reaching for him. The defendant took a swing at the decedent to prevent the decedent from hitting him, but the decedent blocked the blow and hit the defendant in the face, knocking him to the floor. The decedent sat on the defendant's stomach, punching him in the face, while seven or eight other men were kicking the defendant. The defendant heard Herrera say "Kill him. He's a pig. He's a policeman." He felt someone grabbing for his gun and his left pants pocket, near where his revolver was tucked into his waistband, was torn. The defendant then got up, fired a warning shot, showed his badge and announced he was a policeman. He told everyone to leave the premises or they would be arrested. The decedent kept charging at him and grabbed his wrists. They began struggling over the gun while Herrera and Antonetty threw punches at the defendant. The decedent put pressure on the ...