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People v. Gomez

OPINION FILED JUNE 11, 1982.

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

v.

VICTOR GOMEZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. BARBARO, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant was convicted in a bench trial of murder and attempted armed robbery and sentenced concurrently to 25 to 45 years on the former and 4 to 12 years on the latter. On appeal, he contends that (1) he was not proved guilty of the offenses beyond a reasonable doubt; (2) he was not informed of a State rebuttal witness to his alibi defense; and (3) the trial court erred in not granting immunity to a defense witness.

Rubin Mercado (Rubin), stepson of Manuel Darang, the murder victim, testified that on July 22, 1976, he was in his stepfather's well-lighted grocery store and standing close to him when two men entered about 9 p.m.; that one of the men began looking at comic books near the cash register, about 1 1/2 feet in front of him (Rubin), while the other circled the interior of the store; that after some children left the store, defendant — whom Rubin identified in court as the man near the comic books — drew a gun and said, "Freeze, it's a holdup"; that Darang told defendant "to take the money"; that he (Rubin) was facing defendant when those statements were made; that as Darang turned to touch Rubin, defendant fired two shots at him; that the other man, who was then coming toward Rubin behind the counter, caught Darang and placed him on the floor, and the two men then ran out of the store; that defendant was about 5 feet 10 inches tall and had an Afro haircut and a beard; that as he (Rubin) ran out to tell his mother what had happened, two girls came in; and that about a month later he identified defendant in a lineup.

On cross-examination, Rubin testified that at the time of the occurrence, defendant "had an Afro and a little beard"; that he did not tell a police officer shortly after the shooting that the only description he could give of the offenders was that they were Latin and the one with the gun had an Afro and was between 20 and 25 years of age; that at trial, defendant was heavier and had a fuller beard; that he remembered nothing about defendant's clothing but thought he was tall for a Latin; that he was watching television when the men came in, looked up at them for about one second, and went back to watching television; that he looked up again when defendant drew a gun; that about five minutes elapsed from the time the men came in until defendant pulled the gun and another five minutes until the men ran out; that it was a matter of seconds after defendant said, "Freeze, it's a holdup" until he fired the gun; and that while the men were in the store he had a clear view of defendant for approximately one minute.

Naomi Darang, Rubin's mother, testified that she arrived shortly after the incident and found her husband dead; and that, when she had seen him earlier in the evening, he was wearing a pistol in a hip holster but the gun and holster were missing after the occurrence and never located.

Ivette Rodriguez (Ivette) testified that she had known defendant for 12 years; that on July 22, 1976, she was driving her mother's car accompanied by her girl friend, Sonia Gonzalez (Sonia); that at 7:30 p.m., near Humboldt Park, which was approximately two blocks from the murder site, she saw defendant, blew her horn, and pulled over; that defendant crossed the street and talked with her and Sonia; that they decided to go to Chicago's Old Town, and defendant got into the car; that on the night in question, from 7:30 to 10:30 when Sonia was taken home, defendant was not out of their sight except for a few minutes when he was inside a gas station; and that she (Ivette) and Victor were together constantly until 1 a.m., driving around Chicago.

Sonia Gonzalez gave substantially similar testimony about the events of the night in question.

Asserting that he was not in the grocery store at the time of the shooting and denying that he killed Darang, defendant testified that about 6 p.m. on the evening of July 22, he was with some friends in Humboldt Park; that at about 7:30 or 7:35, he left in a car with Ivette and Sonia; that they arrived at a gas station at about 8 p.m. and stayed for 15 minutes; that they then drove to Old Town and left at 9:45 or 10 p.m. to take Sonia home; that he was not in Darang's grocery store between 8:30 and 10 p.m. and was not out of the sight of Ivette and Sonia from 7:30 to 10 p.m.; that about a month later he was in a lineup, wore a full goatee, and had tattoos on both arms; and that, on the night in question, both arms were uncovered. On cross-examination, defendant testified that he had been in the store at around 5 p.m. on the evening of July 22.

Officer Frank Musial testified in rebuttal that on July 23, 1976, he interviewed Ivette Rodriguez who told him that she first saw defendant at 9 p.m. on the night of the incident. On cross-examination, he testified that he had not made a report of the incident and that Ivette had told him that she, defendant, and another woman drove around Old Town on the night of July 22.

OPINION

Defendant first contends there was a failure to prove his guilt beyond a reasonable doubt. He maintains that the identification by Rubin Mercado, the sole occurrence witness, was vague and uncertain and was not convincing as to his guilt. We disagree.

The testimony of a single credible witness who had ample opportunity to make a positive identification is sufficient evidence to convict (People v. Williams (1981), 96 Ill. App.3d 8, 420 N.E.2d 710), even though such testimony is contradicted by the accused (People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631). The credibility of identification witnesses and the weight accorded their testimony rests with the trier of fact (People v. Weatherspoon (1978), 63 Ill. App.3d 315, 379 N.E.2d 847) and, in that capacity, consideration is given to such factors as the amount of time the witness had to observe the offender, the proximity to him, and the adequacy of the lighting (People v. Baker (1979), 78 Ill. App.3d 411, 396 N.E.2d 1174). However, evidence of alibi cannot be disregarded if the only evidence contradicting it rests upon the identification of the accused as the man who committed the crime. (People v. Gardner (1966), 35 Ill.2d 564, 571, 221 N.E.2d 232.) Only when the evidence is so improbable as to raise a reasonable doubt of guilt (People v. Tuell (1981), 97 Ill. App.3d 849, 423 N.E.2d 954) or where a conviction "rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt" will it be reversed (People v. Gardner (1966), 35 Ill.2d 564, 571, 221 N.E.2d 232, 236, quoting People v. McGee (1961), 21 Ill.2d 440, 444, 173 N.E.2d 434, 436).

Within the framework of those general principles, we find significant the testimony of Rubin Mercado that on the night in question the store was well lighted as he viewed the shooting from a distance of about 1 1/2 feet. He also stated that he had a clear view of defendant and saw his entire face for about one minute, especially recalling defendant's Afro hairstyle and beard, and that defendant was in the store for 5 or 10 minutes. Furthermore, Rubin selected defendant from a lineup approximately one month after the incident and identified him in court, pointing out that at trial defendant was heavier and his beard fuller than they had been on the night in question.

• 1 Defendant points to a discrepancy between Rubin's purported description of defendant to the police and what the police actually reported. Rubin testified to telling the police that defendant had an Afro and a beard; but the police report, admitted by stipulation, contained the notation that Rubin could describe the assailants as being Latin and the man with the gun as having an Afro and being between 20 and 25 years old. In our view, however, the report simply omitted a detail from Rubin's description and is not inconsistent. Moreover, it is well established that a police report which an identifying officer neither prepared nor signed does not constitute grounds for impeachment. (People v. Spain (1980), 91 Ill. App.3d 900, 415 N.E.2d 456; People v. Currie (1980), 84 Ill. App.3d 1056, 405 N.E.2d 1142.) Similarly, it can scarcely be said that Rubin should be held accountable for the contents of the police report, since he was 11 years old at the time in question and at trial denied telling the police officer that he could only describe the offenders as stated in the report. Rubin also testified that defendant wore a beard on ...


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