APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendants, Valente Burnette, Paul Villagomez and Enrique Lopez, were charged with the offense of murder of Robert Salcedo (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)), attempt murder of Alfredo Morales (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a)), and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). The cases were consolidated for trial, with Burnette and Villagomez receiving a jury trial and Lopez receiving a bench trial. The jury returned a verdict of guilty of murder and armed violence against Burnette and Villagomez. Lopez was found not guilty in his bench trial. Burnette and Villagomez were sentenced to concurrent terms of 30 years for murder and 20 years for armed violence. The defendants raise the following issues for review: (1) whether the State failed to prove them guilty beyond a reasonable doubt; (2) whether the court erred in denying their motion to instruct the jury on the lesser-included offense of involuntary manslaughter; (3) whether the court erred in admitting hearsay evidence; (4) whether the court erred in denying their motion for mistrial on grounds that the prosecutor waved before the jury transcripts of witnesses' testimony and argued that the transcripts were full of prior consistent statements; (5) whether the conviction and sentence for armed violence should be vacated because it is a lesser included offense of their conviction and sentence for murder; and (6) whether the court erred when it allowed the prosecutor to impeach a defense witness with a prior juvenile adjudication of delinquency.
We affirm the judgment and sentence for murder. We reverse and vacate the judgment and sentence for the offense of armed violence.
On December 1, 1978, at approximately 10 p.m., Ruben Salcedo, brother of the deceased victim, and Alfredo Morales, brother-in-law of the deceased victim, drove to 18th Street and Ashland Avenue, in Chicago, for the purpose of giving Robert Salcedo, the victim, a ride home. They found Robert with several other people in a garage in the alley south of 18th Place. Robert asked his brother to give Ivan's car a battery jump. Ivan was among the people in the garage. The car, a yellow Colt, had stalled, double-parked, in front of 1532 West 18th Place. Rubin agreed to do so. As Rubin and Alfredo re-entered their car to circle the block, Robert, Ivan and Amador Covarrueies walked to the front of Amador's house where the yellow Colt had stalled.
Rubin testified that he drove east to Laflin, turned left in a northerly direction to 18th Place, and turned left, westbound, onto 18th Place. After turning onto 18th Place, he saw two double-parked cars. The car to his left, parked on the south side of 18th Place, was a dark greenish-blue Pontiac. It was facing east. As Rubin and Alfredo passed the vehicle, they saw defendant Villagomez in the driver's seat and defendant Burnette in the passenger seat. The car to Rubin's right, on the north side of 18th Place at the mouth of the alley, was a red Ford Maverick. Rubin saw several people in the Maverick but identified only one — defendant Enrique Lopez as the person seated in the driver's seat. Because the streets were slippery due to ice and snow, Rubin drove 2 to 3 miles per hour as he passed between the cars. Rubin proceeded west on 18th Place to the next alley, made a left turn, backed out and returned east to bring his car nose-to-nose with the stalled yellow Colt.
Rubin Salcedo testified that he was able to see defendants because there was a bright street light directly above the cars. In addition, Rubin had previously known defendant Burnette by the name, Val. He had known defendant Villagomez as a friend of his brother, Robert.
Further testifying, Rubin stated that he and Alfredo exited the car and joined Robert, Ivan, Amador and a girl named Norma around the stalled car. They heard someone shout, "I think they're going to shoot!" Rubin and Alfredo both testified that they saw Burnette and Villagomez get out of the car and drop into a crouch position. Each saw flashes coming from the direction of the greenish-blue car. Each saw Burnette and Villagomez with their arms extended. They testified that Robert Salcedo fell wounded in the street. They tried to reach the victim but were hindered by shots. Rubin testified that he called out, "Deputy Sheriff, halt!" But, the shooting did not stop. Thereafter, Rubin fired toward the greenish-blue Pontiac. He further testified that shots then came from the direction of the red Maverick.
When Rubin and Alfredo were able to reach the victim and pull him between the cars, Rubin said he noticed that his brother's face was covered with blood and that there was a bullet hole on the left side of his head. Rubin and Alfredo placed the victim in Rubin's car. Rubin put the car in reverse and backed down the street. He drove to the University of Illinois hospital. Dr. Shaku Teas testified that on December 2, 1978, she performed an autopsy on Robert Salcedo. Death was caused by multiple gunshot wounds.
Jennie Cardenas of 1529 West 18th Place testified that on December 1, 1978, between the hours of 10:30 to 11:30 p.m., she had raised the window abutting the fire escape outside her second floor apartment in preparation for decorating the window and fire escape with Christmas lights. Cardenas testified that she noticed a yellow car stalled in front of her house near the middle of the street. Her house was across the street from Amador Covarrueies, a neighbor she had known for 4 years. Cardenas said that when she looked east toward Laflin she saw a dark-colored car and two men standing in the street. The men each held a black object which reflected the street light, and which they pointed toward the yellow car. She heard gunfire and saw flashes coming from the objects held by the two men. Cardenas identified the two men as defendants Burnette and Villagomez. She had known Villagomez for approximately 10 years and had known Burnette as Val for about 1 year. Cardenas further testified that as the car carrying the victim away backed down the street the two men walked west toward the yellow car and continued to fire. The witness stated that she left the window to quiet an awakened baby. When she returned to the window, she saw the parents and sister of Villagomez on the street. She heard Villagomez' mother yell in Spanish, "Run, run and hide." The statement was admitted over objections of the defense.
Antoinette Cardenas, sister of Jennie, testified that she was in the living room of her second floor apartment at a window adjacent to where Jennie stood. She observed the events as described by her sister. She also identified the defendants. She heard and testified, over defense objections, that the mother of Villagomez shouted in Spanish, "Run, run and hide." Thereafter, the witness testified, she left the window and telephoned the police.
During defendants' case in chief, Jessie Velasco, a juvenile, testified as to the events of December 1. He had been with the defendants most of the evening. Velasco testified that he did not have a gun nor did he see guns in the possession of defendants. Velasco suffered a bullet wound as he ran east toward Laflin. On cross-examination, the State impeached Velasco with a prior juvenile adjudication of delinquency. The State asked the witness whether he had been convicted of murder. Defendants claim error and that the acts of the prosecutor inured to their prejudice.
Defendants Burnette and Villagomez testified. Both denied having guns and shooting Robert Salcedo. They admitted that they were in the area, that they had spent 4 or more hours riding in a dark-green car owned by a friend of Villagomez, and that the friend had taken them to 18th Place where Lopez had parked the red Ford Maverick. Neither knew how the shooting started or from which direction the shots came. When they heard the shots, they ducked behind the Ford Maverick and ran.
Burnette and Lopez, with the aid of the driver of the dark green car, took the wounded Velasco to the University of Illinois hospital. Velasco, Burnette and Lopez were identified at the hospital by Rubin Salcedo. Villagomez was arrested 1 month following the incident. He had left the city because he knew the police were looking for him.
The jury found defendants Burnette and Villagomez guilty of murder and armed violence. Following arguments in aggravation and mitigation, both defendants were sentenced to concurrent terms of 30 years ...