APPEAL from the Circuit Court of Cook County; the Hon. PETER
I. COSTA, Judge, presiding.
MR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Respondents Frank and Juan Gonzalez were charged in separate Juvenile Court delinquency petitions with the offense of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2)). Following trial, the court found respondents delinquent, adjudged them wards of the court and after a dispositional hearing, committed them to the Juvenile Division of the Illinois Department of Corrections. On appeal, respondents contend that: (1) the evidence fell short of proof beyond a reasonable doubt, and was insufficient to sustain a finding of delinquency because testimony of the State's witnesses was confusing, inconsistent and incredible; (2) the evidence as to respondent Frank Gonzalez was insufficient to sustain a finding of delinquency on the theory of accountability; (3) it was plain error for the trial court to admit hearsay evidence regarding a prior arrest of respondent Juan; and (4) the trial court erred in permitting the State to introduce the rebuttal testimony of Laura Williams since her name had not previously been given to respondents.
On February 28, 1979, Fellipe Baez died as the result of a gunshot wound in the back. Facts adduced at trial regarding the shooting can be summarized as follows. At approximately 8:30 p.m. on that date, a group of teenagers stood talking in front of an apartment building located near Armitage and Humboldt Avenues in Chicago. Although the exact number in the group is unclear, it appears that State's witnesses Robert Killian, Carrie Blake, and Miguel Gola were among the group. At least some of these youths were affiliated with a gang called the "G.B.O." or "Ghetto Brothers Organization." The group was approached by three youths, including respondent Frank Gonzalez, who yelled, "Y.L.O." which meant "Young Latin Organization." After giving the Y.L.O. yell, respondent Frank and his companions left the area but returned 10 minutes later and gave the yell again. This was considered a challenge by the G.B.O., so they began chasing the Y.L.O. despite the warning of Carrie Blake that it was probably a "set up." They chased the Y.L.O. into a nearby alley. It was here that Fellipe Baez was shot.
The witnesses' testimony differed as to the number of street lights which were operating in the alley on that evening; however, they all testified to having seen respondent Juan Gonzalez enter the alley carrying a rifle and stated that they had known both respondents prior to the incident because they all attended the Yates school. State witness Robert Killian testified that he saw respondent Juan enter the alley with a rifle and begin firing as his brother, respondent Frank, stood beside him and watched. Robert said he and his friend, George, hit the ground when the shots were fired. When he got back to his feet, he saw Juan reload and fire again. After the second shot was fired, Fellipe Baez, who had been standing in the alley yelling, "G.B.O. Love," was struck. Witness Miguel Gola also testified that he saw Juan in the alley with a gun, that he heard the shots and the cries of Baez and that Frank stood next to his brother Juan during the shooting. Several witnesses testified to having heard the deceased yell, "I'm shot, I'm shot." State's witness Edwin Rosario testified that he had been hiding under his back porch located near the alley, when the shots rang out. Rosario stated that when the shooting stopped he looked down the alley and observed Juan running with what "looked like a rifle."
The exact number of shots which were fired in the alley is in dispute. It appears that there were several. Witness Killian testified to hearing two shots from the rifle and then about eight more which sounded like they came from an automatic weapon. Witness Blake claims to have initially heard three rifle shots followed by some firing from what sounded like an automatic pistol, and witness Gola reportedly heard some 24 or 25 shots in total. However, respondent Juan Gonzalez was the only person seen in the alley with a gun. Three cartridge cases were later found in the alley by Chicago Police Officer Dennis Lesniak.
Witness Killian testified that he went to seek help following the shooting. He located Police Officer Michael Mulvihill on Humboldt and informed him of the incident. While directing the officer to the site of the shooting, Killian told him that Moses Santiago had been involved. Killian on the following day, however, told the police that the respondents had been involved in the killing of Fellipe Baez. Killian testified at trial that he had given the name Santiago to Officer Mulvihill on the day of the shooting because he was afraid of the respondents' older brother who frequented his neighborhood. According to Officer Mulvihill, he spoke with Killian for only two or three minutes, and observed that Killian appeared to be "very nervous" after the shooting.
Respondent Juan Gonzalez testified on his own behalf that on the evening of the shooting he arrived home at about five o'clock and there he remained for the rest of the evening. Juan stated that he knew State's witnesses Carrie Blake and Edwin Rosario but denied knowing Robert Killian and Miguel Gola. Juan admitted belonging to the Y.L.O. gang four years ago but stated that at the time of the incident he was no longer a member.
Respondent Frank Gonzalez also denied any participation in the incident leading to Fellipe Baez's death. Frank stated that at one time he had belonged to the Y.L.O. gang and that he had seen Killian, Blake, Gola and Rosario before, but did not know them well.
The respondents' mother, Gloria Rodriguez, testified that on the day of the shooting, she arrived home between 5 and 5:30 p.m. She stated that both respondents were home at this time and that she asked them to stay in because she had heard earlier of some trouble in the neighborhood. Mrs. Rodriguez testified that she went to bed at about 7 or 8 p.m. in the front room of the house, but that she remained awake throughout the night. Mrs. Rodriguez stated that her sons were at home all night until police officers arrived.
The defense also presented testimony by two character witnesses who were both affiliated with the Inner City Impact Organization. Their testimony revealed essentially that they had no knowledge of either respondents' affiliation with any neighborhood gangs.
The State then called two rebuttal witnesses. Chicago Police Investigator Neil Sullivan testified that the respondents' mother had informed him on March 1, 1979, that she had gone to bed at 6 p.m. on the night of the shooting. Sullivan further testified that he was aware of respondent Juan's bad reputation in the community from his experience in the gang crimes unit of the police department. He also stated, without objection, that he had personal knowledge from his office files that Juan had been arrested before.
The State's final rebuttal witness was Laura Williams, a teenager in the respondents' neighborhood. The Assistant State's Attorney had informed the court during the course of the trial of his desire to call a female witness on rebuttal. However, Williams' name was not submitted to the court on that day, nor had it been included in the list of witnesses prepared prior to trial. We note in addition that respondents did not object to her testimony at trial. Williams testified that she knew the respondents and had seen them both on Humboldt Avenue at about 8 p.m. on February 28, 1979, when she was standing with some of the G.B.O. members in front of the apartment building on Humboldt. She further testified that she had observed the respondents earlier in the evening yelling, "Y.L.O.'s and Disciples and Cobras." Williams stated that both respondents had belonged to the Y.L.O. gang during the summer of 1978.
Both respondents were found delinquent by the trial judge and committed to the Juvenile Division of the Illinois Department of ...