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People v. Tostado

OPINION FILED JANUARY 23, 1981.

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

v.

TEODORO TOSTADO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WARREN D. WOLFSON, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant was indicted for the reckless homicides of Jose Martinez and Michael DeLeon. (Ill. Rev. Stat. 1975, ch. 38, par. 9-3.) After the trial court granted defendant's motion acquitting him of the reckless homicide of DeLeon, a jury found him guilty of the reckless homicide of Martinez. Defendant was sentenced to a year in prison and now appeals. He contends that: (1) the trial court erred in refusing to further instruct the jurors upon their request; and (2) there was no evidence that the body examined by the pathologist was that of the victim Martinez. We affirm.

The facts can be briefly stated initially and will be discussed more fully as needed to dispose of defendant's contentions. The evidence introduced at trial showed that in the early morning hours of August 14, 1977, defendant, accompanied by several friends who had had a couple of whiskeys, was driving a car in the wrong direction on a one-way street at a speed of approximately 60 miles per hour (30 miles per hour over the posted limit) when they collided broadside with a taxicab at an intersection. The two occupants in the taxi died as a result of injuries received in the collision. Among others, the jury received Illinois Pattern Jury Instructions, Criminal, No. 7.10 (1968) (hereinafter cited as IPI Criminal), which provided:

"To sustain the charge of reckless homicide, the State must prove the following propositions:

First: That the defendant caused the death of Jose Martinez, by driving a motor vehicle; and

Second: That the defendant drove the motor vehicle recklessly; and

Third: That the defendant drove the motor vehicle in a manner likely to cause death or great bodily harm.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."

The jury retired to deliberate at approximately 3:30 p.m. The jury sent a pencilled note to the trial judge asking "Must we agree that the victim was Jose Martinez to find the defendant guilty?" The note also had "6:10" written in ink upon it. Defense counsel suggested that the jury's note be answered with a simple "Yes." The State argued that it was unnecessary for the jury to find that the victim was in fact named Jose Martinez but rather that the body given that name died as a result of defendant's acts. The trial judge recognized his discretion to further instruct the jury but found that a simple answer would be insufficient and that the jury had been adequately instructed. He therefore sent the following reply to the jury: "You have been instructed on the law that applies to this case. You have those instructions." According to the trial judge's recollections, the note was returned to the jury at about 7:05 p.m., and the jury reached its verdict at 7:15 p.m.

I.

OPINION

• 1 Defendant contends that the trial court's refusal to further instruct the jury was reversible error since the inquiry regarding the identity of the victim involved a question of law which the court had a duty to clarify. (See People v. Land (1975), 34 Ill. App.3d 548, 550, 340 N.E.2d 44, 46; People v. Kucala (1972), 7 Ill. App.3d 1029, 1035, 288 N.E.2d 622, 627; People v. Harmon (1968), 104 Ill. App.2d 294, 301, 244 N.E.2d 358, 361.) We do not find that any error was committed. IPI Criminal No. 7.10 clearly informed the jury that the State had to prove beyond a reasonable doubt that defendant had caused the death of Jose Martinez. To establish the elements set out in the paragraph designated "First" in the instruction, the State had to prove that: (1) the body found at the accident scene was dead; (2) the body was identified as that of Jose Martinez; and (3) defendant's acts caused the death of the person so identified. The jury's question is ambiguous in nature, and any response to the question may have required a colloquy between the court and the jury, a further explanation of the facts, and perhaps an expression of the trial court's opinion on the evidence. The jury was fully and properly instructed on the law as it related to the instant set of facts, and the trial court was aware of the jury's problem. The instructions were clear and in common language which the jury could understand. Under these circumstances the trial court properly exercised its discretion in not answering the jury's question or giving additional instructions. (People v. Charles (1977), 46 Ill. App.3d 485, 489, 360 N.E.2d ...


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