APPEAL from the Circuit Court of Cook County; the Hon. VINCENT
BENTIVENGA, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rogelio Aguero (defendant) was indicted for the murder of Anastacio Ruiz and Rogelio Noyola. The jury found defendant guilty of voluntary manslaughter for the death of Ruiz and acquitted him on all other charges. Defendant was sentenced to five years. He appeals.
Noel Roldan testified he went to a tavern on August 12, 1977, between 8 and 8:30 p.m. There he met Jimmy Bryand, Hector Medina, Ricky Ochoa, Anastacio Ruiz, and Rogelio Noyola. The group left the tavern together. All six walked down the alley in groups of two. Roldan and Medina were in the first group, followed by Bryand and Noyola, and then by Ochoa and Ruiz. The groups were approximately 10 feet apart. Roldan testified he saw three girls, Stella, Adelle, and Virgie, walking one block ahead of them.
As Roldan reached the end of the alley, he heard his name called. He turned around and observed defendant "had" Ruiz "by the collar." Defendant was with a girl, Christina Jama. Roldan saw Noyola walk toward defendant. Noyola told defendant Ruiz was not bothering anyone and to leave him alone. Defendant then "pulled his hand" away from Ruiz. Roldan saw a gun in defendant's hand. Defendant put the gun against Roy Noyola's head. Noyola pulled the gun down. Defendant again put the gun to the left side of Noyola's head. Roldan heard a shot and saw Noyola fall to the ground.
Roldan then "saw the man coming toward" him and Medina. He turned around and started running. He ran across the street and behind a parked car. Roldan heard two more shots. He later walked back to the scene and saw defendant and Christina Jama walking down the alley about a block away. Noyola and Ruiz were lying in the alley.
On cross-examination Roldan testified he did not belong to the gang, the "Latin Kings." He said none of his friends present that night was a member. He also stated that when he turned around he saw Christina Jama had grabbed defendant's arm and cried, "`Don't do it. Don't do it.'" He had never seen defendant before. He also said the lighting in the alley was "good."
Rick Ochoa corroborated Roldan's testimony concerning the death of Noyola with some variations. Ochoa also testified he saw defendant "grab" Ruiz from behind and push him against the wall. After defendant turned from Ruiz to Noyola, Ruiz "walked away." Defendant then "grabbed" Noyola "by the collar." After shooting Noyola, defendant "ran to Anastacio [Ruiz] and grabbed him in the back of the collar." Defendant put the gun to the back of Ruiz's head and fired. Ochoa ran toward the street. He heard another shot. A little later he turned around and saw defendant "standing there playing with the gun." On cross-examination Ochoa testified he did not belong to the Latin Kings. On redirect Ochoa testified one of the girls he observed one block ahead of them was Stella Jama (Christina's sister).
Bryand's testimony corroborated that of Roldan and Ochoa with reference to both of the shootings. Bryand testified after Noyola had been shot he saw defendant "run up to Anastacio Ruiz" who was "fifteen feet away." Defendant "grabbed Ruiz by the back of the collar" and "fired another shot" into the back of his head. Bryand started running and soon heard another shot. He then looked for the police. On cross-examination Bryand testified he was not a member of the Latin Kings.
Hector Medina testified he saw defendant "holding" Ruiz. Defendant had Ruiz "against the wall." Noyola walked over to defendant. Defendant stated, "`Don't mess with those girls.'" Defendant then released Ruiz and grabbed Noyola's right shoulder. Medina saw a gun in defendant's hand. Later he heard a shot. Medina ran behind a car across the street. He heard two more shots. A few seconds later he emerged from behind the car and saw defendant "doing something with the gun." Defendant then "walked away." On cross-examination Medina testified he did not belong to the Latin Kings nor did any of the others present that night. None of his friends had a gun that night.
Officer Charles Jackson testified two "live cartridges" were found in the area, 8 to 10 feet apart. He found a gun in a nearby back yard. The gun was without a cylinder.
Christina Jama testified on behalf of the defendant. At the time of the occurrence, she was defendant's girlfriend. She had known him for five months. At the time of the trial, she was the mother of defendant's child. At 11 p.m. she "was going to meet Roy [defendant] to take" her home. She met defendant and they headed through the "dark" alley. They noticed "somebody was following" them. Two males and then two more passed them, but they kept on walking. A little later the other men "started slowing down and that and that's when I heard somebody say, `Get him,' and I told him to watch out."
Christina then "just noticed three guys on" defendant and "they were, like, holding him." She was a few feet away. She was "scared" because she "didn't know what was gonna happen." Christina then began to run for help at which time she heard two shots. She did not see defendant reach for a gun, but saw one of the other men "reaching for something." Christina ran to a place in front of "the house." She went to defendant's house and defendant arrived minutes later. They then "went upstairs to his house" and stayed there 15 minutes. She and defendant used a friend's car and drove to Mexico.
Christina also testified defendant was not a member of a gang. She said her sister, Stella, left her grandmother's porch to go home. She testified she was not aware defendant possessed a gun on that night and she had never carried that gun. She saw no other girls in the alley. Christina further said she did not tell defendant not to do it. Defendant did not say to stay away from those girls.
Investigator Daniel Darcy testified he interviewed Roldan, Bryand, Medina, and Ochoa. All told "basically the same story." They told Darcy the Jama sisters began to argue and "the two victims became involved in the argument and the defendant produced a handgun and shot both of the victims."
Defendant testified he saw Christina Jama and she asked him to walk her home. They walked through the alley toward her residence to get in the back entrance. In the alley they "heard some voices and some footsteps behind" them. They both ...