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People v. Calderon

OPINION FILED JUNE 24, 1980.

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

v.

MORRIS CALDERON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

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

Defendants, Morris Calderon and Vincent Galvan, were charged by indictment with the murder of Jimmie Vargas. Calderon requested a bench trial which was conducted simultaneously with the jury trial of his co-defendant Galvan. Both defendants were found guilty of murder; they were sentenced, respectively, to serve 20- and 24-year terms in the State penitentiary. Each defendant appeals his conviction. We consider the following issues for review: (1) whether the police had probable cause to arrest defendant Calderon; (2) whether defendant Calderon was convicted of murder beyond a reasonable doubt; (3) whether defendant Galvan was convicted of murder beyond a reasonable doubt; and (4) whether the prosecutor's remarks during closing argument were improper.

For the reasons hereinafter set forth, we affirm the convictions of both defendants, Calderon and Galvan.

Jimmie Vargas (hereinafter referred to as the victim) was fatally wounded when shots were fired into a group of people gathered in front of the building at 2611 South Sawyer in Chicago, Illinois. The incident occurred at approximately 10 p.m. on July 21, 1977, and the victim subsequently died on August 1, 1977, as the result of the shooting. Defendants Calderon and Galvan were indicted for the murder of Vargas. Prior to trial, both defendants moved to quash their arrests and to suppress their subsequent identification. The evidence adduced at the hearing and the trial follows.

Galvan testified that at approximately 11:30 p.m. on the night in question he and Calderon, both members of the "Latin Kings" street gang, were riding in the latter's blue 1965 Mustang when they were stopped by police officers. Defendants got out of their car and when they told the police their names, they were handcuffed and arrested. They were placed in the back seat of the squad car and transported to St. Anthony's Hospital. One officer drove them, and the other officer followed in Calderon's automobile. While the squad car was parked in front of the hospital, five members of the "Ambrose" street gang approached defendants and yelled, "We got you now; don't think you are going to get away with this."

Calderon's testimony substantially corroborates Galvan's recitation of the events of the night in question. However, Calderon added that he met Galvan at approximately 9:30 p.m. and the two proceeded to drive around. They made one stop where a girl took a photograph of them and then they went to the residence of Ralph Perea where they remained from approximately 9:45 p.m. to 10:50 p.m.

Investigator Steven Steele, a Chicago police officer, testified that on the night of July 21, 1977, he and his partner, investigator John Schaefer, were patrolling when they received a "flash message" regarding a suspect, Vince Galvan, and an older model blue Mustang, wanted in connection with a shooting. The officers were not given a description of any other suspect or any other names of individuals in connection with the crime. Within a short period of time the officers noticed a blue Mustang, which they stopped. Galvan, who was the passenger, got out and approached the officers. When defendant Galvan gave the officers his name, both defendants were arrested and placed in the squad car. Officer Steele called the radio dispatcher and was informed that the persons involved with the shooting were at St. Anthony's Hospital. Officer Schaefer drove defendants to the hospital in the squad car, and Steele followed in the Mustang. Upon arrival at the hospital, Steele noticed a group of "Latins" approach the squad car, "yelling, that's them, that's the car." In denying defendants' motion to quash the arrests the trial court stated:

"Nothing wrong with the stopping of the car. Apparently, the description was good enough to get the guy they wanted to, namely, Vincent Galvan. I see nothing wrong with the police arresting the two individuals in the car because of the shooting. I see nothing wrong with going over to St. Anthony's Hospital."

Donasiano Limes testified that on July 21, 1977, at approximately 6:30 p.m. he arrived at 2619 South Sawyer where he remained for several hours. He sat outside the building with a group of people, some of whom were fellow members of the "Ambrose" street gang. During this time he consumed about a quart of beer. At approximately 9:40 p.m. he saw both defendants drive past the building in a blue Mustang with a black vinyl top. Limes knew that both Calderon and Galvan were members of the "Latin Kings" and that Galvan had previously been a member of the "Ambrose" but had changed gangs. He knew Calderon only by the nickname "Moe." About 20 minutes later Limes was sitting on the front steps of the house at 2618 South Sawyer when he heard a gunshot, followed by a short silence and then four or five more shots. There were bushes in front of the steps where Limes sat, and there were cars parked on both sides of the street. Upon hearing gunshots, Limes looked across the street and saw Galvan fire the shots and noticed Calderon with him in the gangway. He "stooped down" and went behind some bushes that were to the left of the steps. After the firing ceased, he looked up and saw both defendants run down the gangway to an alley where there was a blue Mustang. Although Limes originally testified that the gangway was directly across from the 2619 South Sawyer building, he later stated that the gangway was located two houses south of the building and across the street. After the last shot was fired, Limes went to the victim and took him to St. Anthony's Hospital. At the hospital Limes described to police officers what he had seen. He stated that he described "Moe" to the police as wearing a Latin Kings' sweater. He later saw both defendants at the hospital.

Marvin Olvera testified that he was a member of the "Ambrose" street gang. He admitted that he had previously been convicted of armed robbery and of contributing to the delinquency of a minor. On the night in question he arrived at 2619 South Sawyer at about 7 p.m. He began drinking at about 9 p.m. and consumed a quart of beer. At 9:30 he saw Galvan and Calderon drive past the building in a blue Mustang with a black top. He stated that Galvan had previously been a fellow member of the Ambrose gang but was a member of the Latin Kings on the night in question. At 10 p.m. Olvera heard a gunshot, followed by several other shots. He was standing on the left side of the stairs when the first shot was fired, and he "started to drink" and moved around some bushes. He testified that he saw Galvan standing in the gangway across the street and that Galvan was firing the shots. Calderon was with Galvan at the time and was wearing a black and white sweater. He stated that after the firing ceased, he ran across the street and down the gangway after the shooters. He further testified that he observed the defendants enter a blue Mustang with a black vinyl top and leave the scene. Olvera stated that he had seen two people and a "shadow," although at the preliminary hearing in this matter he stated that there "was a third person in there." Additionally, he testified that he had told plainclothes police officers that he had seen three individuals at the time of the shooting. He did not give a description of the assailants to the police officers at the scene, although he did tell them the names of the individuals involved whom he had seen.

George Valera was also a member of the Ambrose and knew that Galvan had previously belonged to that gang but had shifted his allegiance to the rival gang of Latin Kings. He also knew Morris Calderon as "Moe." Valera had previously been placed on probation for "carrying a gun." On July 21, 1977, he arrived at 2619 South Sawyer at approximately 6 p.m. Although he was only 17 years old at the time, he was drinking beer with various members of the Ambrose and their friends. At 10 p.m. he was standing on the sidewalk in front of the building. He stated that he saw Galvan fire the shots from the gangway across the street and that Calderon was with him. He had seen both defendants about 15 to 20 minutes earlier when they drove past the building in a blue Mustang. Valera testified that the lighting on the street was "good," although the street light was on the east side of the street, near the building, and not across the street by the gangway. After the first shot was fired, there was a pause. When shooting resumed shortly thereafter, Valera looked to see who was firing the shots. After the shooting stopped, Valera transported an individual named "Artie" who had been shot in the arm, to St. Anthony's Hospital. In the emergency room Valera spoke with police officers and stated that he told police that the man firing the shots was wearing a white "t-shirt" and black pants, and that "Moe" was wearing a black and yellow sweater (which was the symbol of the Latin Kings). Valera and several friends returned to 2619 South Sawyer where he stayed for 20 to 30 minutes and discussed the possibility that they "were going to get some Kings." They returned to the hospital at approximately 11:30 p.m. where they saw Calderon and Galvan in the custody of police officers. They approached the squad car and indicated that defendants were the perpetrators of the crime.

Joseph Flores, a Chicago police officer, testified that he and his partner, Robert Major, drove past 2619 South Sawyer on July 21, 1977, at about 9:30 p.m. They stopped and told the large group that had gathered in front of the building that people had complained about loud music and drinking. The officers told the group to stay off the sidewalk. At 10:15 p.m. they saw people from the group "waving their hands and yelling to us." They observed that two men on the scene had been shot, and they placed the victim, Jimmie Vargas, who had received a head wound, into the squad car and took him to the emergency room of St. Anthony's Hospital. At the hospital Flores spoke with Limes and Valera. Pursuant to their conversation, the officer immediately (about 10:30 p.m.) sent out a "flash message" which included the name "Vince Galvan" and the description of a 1969 or 1970 blue Mustang. Flores testified that Limes and Valera stated that there were three offenders, but he did not recall whether they gave a description for offenders number two and three. The officer made a report on the incident, but this report did not contain the names of any other offenders. Additionally, the officers testified that if the car had been described to them as having a "black vinyl top," this description would have been included in the "flash message."

Steven Steele, an investigator for the Chicago Police Department, gave substantially the same testimony as elicited from him at the hearing on the motion to quash defendants' arrest. On the night in question he received a "flash message"; he later apprehended defendants Galvan and Calderon and transported them to St. Anthony's Hospital where they were identified by several persons who approached the squad car.

After the State rested its case, defendant Calderon presented no evidence on his own behalf and also rested his case. Defendant ...


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