APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Louis Perez, defendant, was charged with armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4), unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3), and aggravated kidnapping (Ill. Rev. Stat. 1977, ch. 38, par. 10-2). At trial, a jury found him guilty of all charges except aggravated kidnapping. The trial court sentenced defendant to imprisonment for a term of 4 to 15 years on the armed robbery charge, 3 to 9 years on the aggravated battery charge, and 1 to 3 years on the charge of unlawful restraint. The sentences were to run concurrently. Defendant appeals from the judgment of conviction, and we affirm.
On appeal, defendant raises the issues of (1) whether the trial court erred in admitting evidence linking him to a street gang; (2) whether his constitutional rights were violated when the assistant State's Attorney commented upon his failure to call certain witnesses; (3) whether the court erred in allowing certain hearsay evidence; and (4) whether he was found guilty beyond a reasonable doubt.
On the evening of September 18, 1977, Gasper Reyes attended a tavern and a social club located in the vicinity of Sawyer and North Avenue, in Chicago. Reyes testified that when he left the tavern to get his car and drive home he was "a little high," but not drunk. He said he was approached by a man named Monie Urdiales outside of the tavern. Urdiales insisted that Reyes give him a ride home. Reyes agreed to do so and drove Urdiales toward California Avenue. As the car approached the intersection of California and Hadden, Urdiales told Reyes to park the car. After Reyes had done so, Urdiales grabbed his arm and forced him to give up the car keys. It was then that defendant Perez approached the car, reached through the window, and held a knife to Reyes' throat.
Reyes testified that he could see defendant's face because of the illumination from the street light above the car. Defendant and Urdiales walked with Reyes into a nearby alley and told him to get into a van. Inside the van was man, a woman, and a baby. Reyes boarded the van along with Urdiales and defendant. While inside the van, Reyes had an additional opportunity to view defendant.
According to the witness, the van was driven to the West 3600 block of Division Avenue. As the van stopped, defendant hit Reyes in the mouth, causing him to lose three or four teeth, become dizzy, and bleed. Defendant then pushed Reyes out of the van and, at knifepoint, took his wallet. Thereafter, defendant, along with the other occupants, left in the van. The witness stated he then went to the house of Irene Mercier.
Irene Mercier testified that at approximately 11:30 p.m. on September 18, 1977, Reyes came to her house at 3715 West Division, bleeding at the mouth. She stated that Reyes requested her to call the police because he had been beaten and robbed.
Police officers Robert Rodriguez and Nicholas Nehoda responded to the call of Ms. Mercier. Officer Rodriguez testified that Reyes told him he had been robbed by male Latinos whom he knew to be members of the Latin Kings street gang; they had taken $100 from him.
Officer Nehoda testified that Reyes had been drinking, although he could not say for certain that he was drunk. The officer had indicated on his official report that Reyes had been drinking.
Reyes spent 6 or 7 hours in the hospital. He stayed home from work for 3 days due to the extreme pain he was experiencing. Finally, on September 22, 1977, Reyes went to the police station.
Sergeant Joe Rodriguez of the Chicago Police Department testified that he spoke with Reyes at the police station. The sergeant stated that Reyes looked at photographs and identified Monie Urdiales as one of the men who robbed him. Defendant's picture was not among those displayed.
Reyes stated at the police station that the robbers were members of the Latin Kings street gang who frequented the area near California and Division. The police and Reyes cruised through the area and observed eight young Latinos on the street. Reyes identified two of them, Urdiales and defendant, as the men who robbed him.
Defendant denied any involvement in the attack on Reyes. Defendant said that on the night in question he was with his mother and brother.
The jury deliberated and sent the judge a note asking, "Is there any legal reason why the other parties alleged to be in the van could not have been brought in as witnesses?" A verdict of guilty was returned ...