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People v. Garcia

OPINION FILED DECEMBER 30, 1981.

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

v.

ERNESTO GARCIA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT GREEN, Judge, presiding. JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Following a jury trial the defendant, Ernesto Garcia, was convicted of three counts of aggravated battery and one count of armed violence. The defendant was found not guilty of attempt murder. The trial court merged the three counts of aggravated battery into the armed violence count and entered judgment on this latter count and sentenced the defendant to six years imprisonment.

On appeal the defendant contends (1) that he was not proved guilty of armed violence beyond a reasonable doubt since the State did not prove beyond a reasonable doubt that he did not act in self-defense; (2) that the trial court erroneously denied his motion to dismiss the charge of armed violence; (3) that the trial court improperly limited cross-examination; (4) that he was denied a fair trial because the trial court limited his closing argument; and (5) that certain evidence was improperly excluded.

Ramon Rios, age 20, testified that on November 7, 1978, he lived with his family at 1845 North Sawyer in Chicago. At approximately 3 p.m., he drove Ruban Granica, a friend from high school, to the apartment of Ruban's estranged wife, Ebby. Ramon went to the door and spoke to Ebby's son. Thereafter, Ebby and her two children entered Ramon's car, and Ramon drove them to the home of Ebby's parents which was located on the same block as Ramon's home.

The following evening at approximately 7 p.m., Ramon was at the home of his brother-in-law who also lived on the 1800 block of North Sawyer. Ramon's girlfriend (now his wife), Theresa Reibeling, joined him. Subsequently, the couple left the house and began walking home. Ramon observed the defendant, Ebby, and a third man approach them. Ramon and Theresa stopped two or three steps south of a gangway. After asking "Are you Ramon?" the defendant pulled a revolver from his waistband.

Ramon pushed Theresa to the side and ran east into the gangway. Ramon heard one shot and brushed against both sides of the gangway. He heard a second shot which hit him in the right upper shoulder and exited through his chest. Ramon fell and the defendant ran. The wound resulted in scarring and the partial loss of the use of Ramon's right arm. Ramon exhibited the entrance and exit scars to the jury.

Ramon denied gesturing as if he were reaching for a gun before the defendant shot him. He stated that he did not own a gun and was not a gang member. Ramon stated that he knew members of the Imperial Gangsters gang and that he had travelled with them. He explained that he meant that he had accompanied gang members on grammar and high school trips. On cross-examination, Ramon agreed that "travel" also meant "to get high with someone and get in trouble with someone."

Theresa Reibeling Rios corroborated her husband's testimony concerning his encounter with the defendant.

Officer John Carney of the Chicago Police Department testified that he wrote in his report concerning the shooting that Ramon and Theresa were sitting in front of his brother-in-law's house when approached by the defendant.

Evelyn Garnica, also known as Ebby, testified that on November 7, 1978, Ramon and her husband came to her apartment and forced her and the children into Ramon's car. Ramon drove them to Ebby's mother's house. Ruban and Ebby argued, and Ruban hit her. Subsequently, upon Ebby's request, Ruban drove her and the children to a doctor's office. They argued and when Ebby attempted to get out of the car, Ruban slapped her and took her jewelry. Ebby informed the defendant, her boyfriend, of these events.

The defendant testified that when Ebby told him what Ramon and Ruban did to her, he bought a gun. The following evening the defendant, Ebby and Blas Manfreddy went to Ramon's home to inquire of Ruban's whereabouts. The defendant observed Ramon and Theresa sitting on a neighbor's porch. The defendant approached Ramon and asked if Ramon had gone to the defendant's home. Ramon responded, "yes, so what" and pulled down the zipper on his sweater. Ramon put his hand inside the sweater. The defendant believed that Ramon was reaching for a gun. The defendant pulled out his gun and shot Ramon. Ramon then ran. The defendant also ran and accidentally pulled the trigger on his gun a second time. The defendant subsequently turned himself in to the police.

The defendant's version of the shooting was corroborated by Ebby and Manfreddy.

The parties stipulated that if a Dr. Baquero was called as a witness, he would testify that Ramon sustained a gunshot wound in the right shoulder with an entrance in the uppermost aspect of the right arm posteriorly on the deltoid area and the wound exit was localized in the anterior chest.

I

The defendant first argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. The issue of self-defense is a question of fact to be resolved by the trier of fact. This factual finding will not be disturbed on review unless it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Perez (1981), ...


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