APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1980.
Enrique Pardo, Raphael Sanchez, and Pablo De Jesus were charged with murder of Candida Rivera and with attempt murder, aggravated battery and armed robbery of Juan Blanch. The trial court granted the motion of Pardo and Sanchez to be severed from De Jesus and to proceed to separate trial. Following a jury trial, Pardo and Sanchez, defendants, were found guilty of murder, attempt murder, and armed robbery for which they were sentenced to concurrent terms of 75 to 150 years (murder), 35 to 75 years (attempt murder), and 4 to 10 years (armed robbery).
On appeal defendants contend that the State's failure to timely provide them with favorable evidence and refusal to correct misstatements in prosecution witness testimony denied them a fair trial. They further claim that this favorable evidence, if properly presented by the State, would have demonstrated the lack of credibility of the prosecution's only occurrence witness. Accordingly, they now assert that they were not proved guilty beyond a reasonable doubt. Defendants also aver that physical evidence, two bullet casings, unconnected with the crime, was improperly admitted. Defendant's final allegations of error pertain to the attempt murder instructions and to the trial judge's admonishments of the minimum sentence for attempt murder under the changed sentencing provisions.
On February 7, 1977, at approximately 2 p.m., two shots were fired at Juan Blanch while he was in the bathroom of his second floor apartment. He recognized the man at the door holding the gun as Raphael Sanchez, and the two others behind Sanchez as Enrique Pardo and Pablo De Jesus. Blanch had known Pardo and Sanchez for a number of years and De Jesus for several months. Pardo, also holding a gun, told Blanch to go into the dining room where Blanch was ordered to sit at the table next to his common law wife, Candida Rivera. Pardo continued to hold the gun on them while Sanchez took Blanch's car keys, wallet, and approximately $300. Blanch then heard Sanchez and De Jesus searching through drawers in the kitchen and bedroom, after which Sanchez returned to the living room, held a gun to Blanch's head, and pulled the trigger. Falling to the floor, lapsing in and out of consciousness, Blanch heard Pardo say, "Shoot her if you are going to shoot her." At some point later, Blanch regained consciousness and struggled into the front room. There he saw Rivera with a gunshot wound to the head. He tried to use the telephone, but was unable, so he went to the stairs and, upon reaching the first floor, opened the front door. He heard a woman scream before he collapsed.
After Blanch testified to the above events, he added that although he did not know who shot Rivera, he was certain that Sanchez had shot him.
Prior to trial, defendants filed a motion to dismiss the indictment premised on the State's failure to furnish evidence favorable to the accuseds in compliance with defense discovery motion. Attached to that motion was a "rap sheet" captioned with the name Juan Real which listed a conviction under the name Juan Blanch. The State contacted Blanch and ascertained that he had been convicted of the possession and sale of narcotics and of breaking and entering. The motion to dismiss was withdrawn after the State amended its discovery answer. Defense counsel stated that he did not have a certified copy of the conviction and asked for a stipulation of the Juan Blanch/Juan Real conviction. The State refused to stipulate to a conviction without a certified copy but instead agreed to stipulate that the "rap sheet" was that of the victim. The trial judge ruled that the defendants could use the "rap sheet" to impeach Blanch.
During his direct examination, Blanch admitted that he had been convicted of the sale and possession of heroin when he was 17 years old, but denied that he was ever a heroin addict. On cross-examination, Blanch denied that he had ever been known as Juan Real or Juan Black, and defense counsel went no further with the attempted impeachment.
Officers Garcia, Rothmun and Thomas and Investigators Ducar and Griffin testified to the discovery of the victims and the investigation leading to defendants' arrest. Rothmun entered the apartment with Garcia through the partially open back door. A small child walked toward them, dragging a bloody blanket. Rothmun picked up the child and walked through the apartment, observing blood on the floor and chair in the dining room. When the child slipped from his arms and ran into the living room, Rothmun saw the body of Rivera, the child's mother, lying there. Garcia heard noises from the stairway and discovered Blanch at the foot of the steps lying face down, bleeding and vomiting. Garcia asked him over and over in Spanish what had happened as Blanch lapsed in and out of consciousness. Blanch finally responded that Pardo had shot him and his wife, and he gave a brief description of the perpetrator.
The next morning Garcia went to the intensive care section and spoke, with some difficulty, to Blanch. Investigators Griffin and Ducar were in Blanch's room at the time and defendant Sanchez's name was mentioned to Garcia, apparently by one of the other policemen. Ducar testified that after the conversation, he also focused his investigation on Sanchez and Pardo. At the hospital the next day, Ducar spoke to Blanch's brother-in-law, who provided the name "Pablo." When Ducar saw Blanch, he asked about "Pablo" and then added the new name to his investigation. Two months later Ducar executed an outstanding murder warrant on Sanchez in Miami. During redirect, in clarification of defense counsel's cross-examination concerning a third suspect, "Pablo," Ducar stated that Blanch placed Pablo in the apartment at the time of the shooting. Further, Ducar related that, according to Blanch, Pablo pointed the gun at Blanch's head, fired the gun, but did not strike him with the bullet.
Inspector Griffin testified that a search of the apartment yielded no contraband, weapons, or fingerprints. On cross-examination, defense counsel brought out Griffin's knowledge of another eyewitness to the crime. On redirect the State was permitted to ask the name of the eyewitness Pablo De Jesus. Griffin testified that De Jesus had made a statement to the Miami authorities which resulted in an arrest warrant being issued against him for the murder of Candida Rivera.
Officer Thomas testified that two empty .38-caliber bullet casings were found on the dresser in the bedroom. Blanch stated that he had not seen them prior to the incident.
Dr. Kanzler was called to establish Blanch's condition in the emergency room. He stated that Blanch was conscious and able to respond to his requests for certain movements. Blanch had been shot behind his right ear and had bone and bullet fragments inside his skull.
The defense presented alibi testimony for Pardo from three of his relatives his mother, father, and brother. All stated that Pardo arrived at their home with his wife, Ives Ortiz, between 1 and 1:30 p.m. on the day in question. Pardo went to the park with his brother soon after and returned at approximately 3. He returned to the Federal penitentiary at around 8. In rebuttal, the State called Investigator Griffin, who with his partner had interviewed Pardo the day after the Blanch shooting. Pardo ...