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People v. Cazares

OPINION FILED JULY 8, 1980.

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

v.

MARIO CAZARES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT COLLINS, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

On March 16, 1979, after a bench trial in the circuit court of Cook County, defendant Mario Cazares (defendant) was convicted of two counts of attempt murder, two counts of armed violence, and four counts of aggravated battery. He was sentenced to serve ten years. Defendant appeals, contending that: (1) the counts of the information which charge him with armed violence fail to state a cause of action, (2) the identification testimony adduced at the trial was not credible, and the conflict of that evidence with his alibi evidence creates a reasonable doubt as to his guilt of the crimes charged, (3) the convictions on the aggravated battery counts and on the attempt murder counts were erroneous since these offenses arose from the same course of conduct as the greater offense of armed violence, (4) the State failed to prove him guilty of attempt murder beyond a reasonable doubt, and (5) the sentence of 10 years was excessive.

On August 12, 1978, six girls between the ages of 12 and 15 were gathered in front of a residence at 3410 W. 38th Place, Chicago. At about 12:30 a.m., an assailant fired several shots at the girls, striking one of them in the buttocks and grazing another's leg. The girls rushed into the house when they realized what was occurring, while the gunman apparently fired a few more shots. The police called to the scene found utter chaos among the victims. The report filed by the investigating officer identified defendant only as a passenger in a car seen passing the area by two of the occurrence witnesses moments before the shooting broke out. It did not indicate that defendant was the gunman, even though witnesses later testified that they had then identified defendant to the police as the assailant. The police did not investigate the place from where the shots came nor did they follow up on the provided identification of defendant.

In the evening hours of August 13, 1978, defendant was detained by police officers on an unrelated matter. While he was sitting in a squad car near the area of the shooting, he was seen by some of the occurrence witnesses. They appeared at the police station, to which defendant was taken soon thereafter, and identified defendant as the gunman who had attacked them. From the material gathered, an eight-count information was drawn. Four crimes were charged to defendant as to each of the two shooting victims: two counts of aggravated battery, one count of armed violence, and one count of attempt murder.

At trial, the State called each of the six girls who had been gathered curbside the night of the shooting. The mother of two of the girls who was sitting on the porch of the residence a few feet from the group of girls at the time of the attack also testified. Of these seven occurrence witnesses, six gave similar descriptions of the location of the gunman and the actions he took during the shooting, and all six identified defendant as the gunman. Only the girl shot in the buttocks was unable to make any identification whatsoever of the assailant. All the witnesses had known defendant to some degree prior to the night of the shooting.

Defendant called his mother and sister to support the alibi to which he testified. All three indicated that defendant was home at 3028 W. 38th St. at least one-half hour before the shooting occurred, and that he did not leave the house again until the next morning.

The court found defendant guilty of all eight counts. In his post-trial motion in arrest of judgment and motion for a new trial, defendant attacked the sufficiency of the two counts of the information charging defendant with armed violence. The court denied these motions and sentenced defendant to a single 10-year term for all eight convictions.

I.

We first consider whether the counts of the information which charge defendant with armed violence as to each girl actually hit by a bullet fail to state a cause of action for the offense charged.

• 1 When the sufficiency of the information or indictment is attacked at the trial level either by way of a pretrial motion or a motion in arrest of judgment, the instrument must comply with the explicit requirements of section 111-3 of the Code of Criminal Procedure of 1963 in order to be found valid. (Ill. Rev. Stat. 1977, ch. 38, par. 111-3; People v. Williams (1980), 80 Ill. App.3d 963, 968, 400 N.E.2d 532.) This is a different rule than is applied when the instrument's sufficiency is attacked for the first time on appeal. (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437.) *fn1 Compliance with section 111-3 is required in the instant case, since defendant made a trial-level attack upon the validity of the counts.

Defendant's present argument impliedly concedes that the counts at issue meet every test of section 111-3 with the exception that they fail to set forth the nature and elements of the offense charged. (Ill. Rev. Stat. 1977, ch. 38, par. 111-3(a)(3).) The elements of armed violence are twofold: (1) commission of a felony (2) while armed with a dangerous weapon. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2.) As amended, the counts charging defendant with armed violence contain identical language setting forth the elements of the alleged crime: "[w]hile armed with a dangerous weapon, to wit: a firearm, intentionally and knowingly without legal justification caused bodily harm to ____." Aggravated battery is committed, inter alia, when a person uses a "deadly weapon" while acting as set forth in the latter part of the above-quoted language. (Ill. Rev. Stat. 1977, ch. 38, pars. 12-3(a)(1), 12-4(b)(1).) A "deadly weapon" is an instrument "that is * * * capable of producing death." (People v. Camacho (1979), 71 Ill. App.3d 943, 954, 389 N.E.2d 1213, quoting People v. Fort (1970), 119 Ill. App.2d 350, 354, 256 N.E.2d 63, appeal denied (1970), 43 Ill.2d 397.) The firearm alleged in the count is such a deadly weapon, and therefore the language of the counts adequately sets forth the felony of aggravated battery. This language also makes the requisite allegation that the felony was performed with a "dangerous weapon." (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-1(a), (b).) While the counts do not explicitly differentiate the aggravated battery (felony) element from the dangerous weapon element by twice alleging that a weapon (deadly or dangerous, respectively) was used by defendant, it cannot be said that this omission is any more than a technical departure from the requirements of section 111-3(a)(3).

It is the policy of the courts> to disregard mere technical objections and to only require that the indictment state the essential elements of the offense. (People v. Ballard (1978), 65 Ill. App.3d 831, 835, 382 N.E.2d 800, appeal denied (1979), 72 Ill.2d 583, cert. denied (1979), 48 U.S.L.W. 3290.) Therefore, we hold that the counts in question complied with the requirements of section 111-3 and thus adequately charged defendant of the crime of armed violence.

II.

Defendant contends that the combination of his alibi testimony with the alleged lack of credibility of the identification evidence creates reasonable doubt ...


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