APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 30, 1982.
Defendant was charged by indictment with the murder of Justina Rivera in violation of sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1) and 9-1(a)(2)), and with armed violence in violation of section 33A-2 (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Following a bench trial, defendant was found guilty of murder and was sentenced to serve 20 years in the Illinois Department of Corrections. On appeal, he contends that: (1) the court improperly admitted hearsay evidence; (2) the testimony of an eight-year-old witness was neither competent nor credible; and (3) he was not proved guilty beyond a reasonable doubt.
Johnny Ramos testified that on June 5, 1980, he resided with his wife Marta in a first floor apartment at 2659 West Cortez, Chicago, Illinois. At about 4:30 a.m. on that date he was awakened by the sound of gunshots followed by screaming. Less than one minute later he heard a knocking on his door accompanied by the victim screaming, "Call the police, help me, Marta." He then telephoned the police, returned to the door, opened it, and saw the victim collapse on the floor. Noticing that she had been shot, he asked the victim, "What happened?" to which Justina Rivera replied, "My sister's husband shot me." At the time the victim spoke, she was covered with blood and was nervous and shaking a lot, mumbling and scared, and her words "came out in a terrified way." Within two to three minutes after the witness heard the gunshots, the police arrived at the scene. On cross-examination the witness testified that the victim's face was covered with dirt and blood.
Marta Ramos testified that on June 5, 1980, she was sleeping with her husband and was awakened at about 4:30 a.m. by the sound of gunshots. A minute or two later she heard some pounding at the door. Her husband opened the door and she saw the victim covered with blood, standing and then falling down. The victim appeared to be in pain. She testified that the police arrived a couple of minutes after the gunshots and that a police officer asked the victim, "Who did this to you?" to which the victim replied, "Sergio."
Investigator Bruce Peck testified that at about 5:15 that morning he conducted an interview with the victim at the hospital emergency room. The victim was lying on a table, groaning, shaking and shivering. Her breathing appeared to be forced and she seemed to be in great pain. The investigator spoke through a medical student interpreter. He asked the victim who shot her and she replied "Sergio." He then asked who this person was and she replied that he was her sister Iris' boyfriend. She also said she was shot because Sergio believed that she was coming between him and Iris. On cross-examination Investigator Peck repeated that the victim was speaking Spanish, which he did not understand, and that he did not know what, if any, medication had been administered to her.
Investigator Michael Shull testified. He had conducted a search of defendant's apartment on the morning of June 5, 1980, and found it unoccupied. Later that afternoon he located and questioned defendant. Defendant related that on June 5, 1980, he was home asleep until approximately noon. When told that his apartment had been searched at 8:30, and then shown a photograph of the victim, defendant called the victim a whore, then pounded his fist on the photo, crumpled it up and threw it on the floor. On cross-examination Investigator Shull stated that defendant later told the police that he was at his former wife's home that morning.
Carlos Gonzales, the eight-year-old son of the victim was the only eyewitness to the offense. He testified that on the night that his mother was shot he was awakened by the sound of defendant's footsteps going towards his mother's room. He had seen the defendant on three prior occasions. He stated that he first saw defendant on the night in question in his apartment at the back door, near his bedroom, and that defendant had looked into his bedroom. The boy testified that he heard defendant say "I got to do this" as he walked to his mother's bedroom. He then explained that he tiptoed to the kitchen where he could see defendant pull a gun from his pants and load it. The witness watched the defendant lift the gun with both hands and shoot in his mother's direction. The boy further identified defendant, in court, as the man who shot his mother and explained that he had identified defendant in a lineup on the day after the shooting.
On cross-examination the boy testified that he had gone to sleep at about midnight and had turned the light out. Then he stated that the light in his bedroom was on when he went to sleep. He further stated that he did not get out of the bed until after he heard the shots. He then related that when he got out of bed he saw defendant put bullets in the gun and cock it. He later remembered that when the shots were fired he was on the back porch and although he could not see into his mother's bedroom he saw defendant pointing the gun into her room and shooting in her direction. The boy explained how defendant then dragged his mother by her feet and then placed her on a couch. He watched as defendant sat down and argued with his mother about something in Spanish. The boy said he then saw his mother try to open the front door, and that defendant ran out the door first and then down the stairs. He saw his mother go down the stairs and fall on the floor. He also described how defendant had put some dirt around his mother's mouth with his hand. He admitted that certain police investigators had told him, prior to his viewing a lineup, that in such lineup would be the man who shot his mother.
Investigator James Padar testified that he examined the crime scene and found a large amount of blood on the stairway outside the door to the second floor apartment and trailing to the third floor apartment. He also found two bullet holes in the wall of the victim's front bedroom.
Officer Jose Martinez testified that he acted as interpreter for Investigators Shull and Padar when they questioned the defendant, and Herberto Torres testified that he was the medical student who interpreted the victim's conversation at the hospital.
Defendant, his wife and their four children testified that at the time of the shooting, defendant was at their house, asleep in his wife's bedroom. On cross-examination defendant stated that he had lived with Iris Ramos for three or four years, that together they had one child, and that they stopped living together three or four months before June 1980.
The parties stipulated that if Dr. Yuksel Konakci, an expert in forensic pathology, was called to testify he would state that Justina Rivera died on June 5, 1980, as the result of a bullet wound to her chest, the bullet ...