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People v. Perez

OPINION FILED SEPTEMBER 23, 1981.

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

v.

MARIO PEREZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of Cook County found the defendant, Mario Perez, guilty of the murder of Oscar Moreno, a/k/a Primitino Moreno. The trial court sentenced the defendant to serve 35 years in the penitentiary. On appeal, the defendant contends that (1) he was denied a speedy trial; (2) he was not proved guilty of murder beyond a reasonable doubt; (3) the jury was improperly instructed; and (4) the trial court erred in failing to strike all arrests not resulting in convictions from the presentence investigation report.

Ralph Villar testified that on April 13, 1978, he was working at Beto's American Wine & Liquors (Beto's) in Chicago, Illinois. At approximately 7:50 p.m., Oscar Moreno entered the tavern alone and sat at the end of the bar.

Ten to fifteen minutes later, the defendant entered the tavern and walked to the area where Moreno was sitting. Villar observed Moreno and the defendant talking. A few minutes later, Villar saw the defendant leave the tavern. He then noticed that Moreno was standing and holding his back. Villar observed blood dripping from Moreno's back. An ambulance was called, and Moreno was taken to the University of Illinois hospital.

Officer Joseph Flashing of the Chicago Police Department testified that when he arrived at Beto's, he observed attendants placing the semiconscious Moreno into an ambulance. After interviewing witnesses, Flashing searched the premises but was unable to discover any weapon.

Dr. Charles Stollar, the resident on call when Moreno was brought into the emergency room of the University of Illinois hospital, testified that Moreno had a single internal injury, a stab wound in the back. X rays revealed that a large collection of fluid was present deep in Moreno's abdomen. Moreno's blood pressure indicated that he had lost a significant amount of blood. It was decided that surgery was necessary. Dr. Stollar, assisted by three other surgeons, first opened Moreno's abdomen with a midline incision. He made two additional incisions in the abdomen for drains. Dr. Stollar testified that he observed 500 cc's of blood within Moreno's abdominal cavity. This condition was highly abnormal. He discovered a large longitudinal laceration of the vena cava, the major vein in the lower portion of the body. This laceration was between 2 and 3 inches in length. In addition, the main vein in the right knee was lacerated as well as the first portion of the small intestine and several small veins. The surgery procedure lasted approximately four and a half hours. Following surgery, Moreno was in poor condition. The doctors were unable to maintain his blood pressure, and Moreno died several hours later. Dr. Stollar stated that in his opinion, the stab wound was the cause of death.

Dr. Stollar stated that he was in training at the time that he performed the surgical procedures on Moreno. He admitted that an injury to the vena cava could occur in the course of surgery. In response to the question of whether the laceration of Moreno's vena cava occurred during surgery, Dr. Stollar responded "Absolutely not."

Dr. Eupil Choi, a pathologist at the Cook County Medical Examiner's office, testified that he performed an autopsy on Moreno. When Dr. Choi examined the victim's body, he observed several wounds. In his opinion, the cause of Moreno's death was a stab wound to the abdomen. Dr. Choi indicated that the wound by the backbone was surgically induced. Dr. Choi further stated that it is difficult to distinguish a wound produced by a surgical instrument from a wound produced by a weapon.

Investigator James Cornelison of the Chicago Police Department testified that on April 17, 1978, an arrest warrant was issued for the defendant and that on August 23, 1978, he was notified that the defendant was in custody in Fresno, California. The defendant waived extradition and was brought back to Chicago on September 1, 1978.

Officer Gary Snow of the Fresno, California, Police Department testified that he interviewed the defendant concerning the arrest warrant. Snow first advised the defendant of his constitutional rights. Then, the defendant gave Officer Snow the following statement concerning the stabbing of Moreno.

On April 13, 1978, the defendant and his cousin were drinking beer in a tavern after work. As the defendant was going to the restroom, he observed Moreno arguing with his cousin. The defendant intervened, Moreno pushed the defendant, and the defendant hit Moreno. Moreno took from his coat a .25-caliber automatic and put it close to the defendant's side. The defendant left the tavern.

The defendant acquired a steak knife and returned to the tavern because "he wasn't going to let this guy get away with pulling a gun on him." When he discovered that Moreno was no longer in the first tavern, the defendant went across the street to a second tavern where he saw Moreno. The defendant told Moreno to come outside because "I am going to give you something." Moreno stood up, started to turn, and appeared to reach into his coat pocket. At this time, the defendant stabbed Moreno.

Detective Snow testified that he asked the defendant to repeat his statement. The defendant stated that when Moreno stood up, the defendant quickly grabbed him, turned him around, and stabbed him in the back. Although Moreno did not move his hands, the defendant did not know if Moreno would try to reach into his pocket.

Following deliberations, the jury returned a verdict of guilty of murder, not guilty of voluntary manslaughter, and not guilty of armed violence.

I

The defendant first argues that he was denied his statutory right to a speedy trial. Pursuant to the statute (Ill. Rev. Stat. 1977, ch. 38, par. 103-5), the State must bring a defendant's case to trial within 120 days of the date he was taken into custody. The ...


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