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People v. Aldaco

OPINION FILED JUNE 25, 1982.

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

v.

DAVID ALDACO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LEONARD R. GRAZIAN, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was found guilty of attempt armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8-4) and was sentenced to a term of eight years in the Illinois Department of Corrections. He appeals, contending that (1) the trial court erred by admitting a transcript of the victim's preliminary hearing testimony in that the State failed to exercise due diligence in procuring the victim's attendance at trial, and (2) he was denied a fair trial by the trial court's failure to ask prospective jurors questions during voir dire sufficient to allow him to intelligently exercise his peremptory challenges.

The following pertinent evidence was adduced at trial.

Chicago police officers James Molloy and John Farrell both testified for the State that they were assigned to a plainclothes Tactical Unit of the Chicago Police Department on May 28, 1978. Shortly after midnight, they were patrolling westbound on 18th Street near 18th and Racine, in Chicago, Illinois, when they observed three Latino men standing on the sidewalk in a well-lighted area. The three men were identified as the defendant, a shorter companion, and the victim, Salvador Razo.

Defendant was holding a gun to the head of Salvador Razo. The policemen stopped their car, and as they were exiting their vehicle, they were spotted by the three men. Defendant immediately threw the gun under a car and fled north up a nearby alley with the second man.

Officer Molloy testified that they did not chase the two men immediately because they knew who the defendant was and also knew where he lived. Officer Molloy recovered the gun while Officer Farrell went over to speak to Razo and placed him in the car.

They proceeded by car towards the direction of the defendant's home and when they sighted defendant coming out of a gangway, Officer Molloy got out of the car and attempted to arrest him. Following a struggle, defendant escaped and ran a short distance until Officer Farrell drove the car in front of him, got out of the car, pulled out a gun and ordered him to stop. Defendant was placed under arrest.

The preliminary hearing testimony of Salvador Razo, which had originally been given in Spanish, was read to the jury. When translated by a court interpreter it consisted of essentially the following:

On May 28, 1978, at approximately 12:05 a.m., Razo was walking near the corner of 18th and Racine when two men "attacked me and tried to rob me." He then made an in-court identification of defendant as being one of the men who had attacked him.

Razo further testified that defendant stopped him with a gun in his hand and asked for his money, but that when the two officers arrived defendant dropped the gun and started running.

Defendant testified on his own behalf that on the night in question, he was walking home from a friend's house when two Mexicans across the street called out to him in Spanish, "Hey, brother, come here for a moment."

He stated that the taller man asked him if he was interested in buying a gun, explaining that the immigration authorities had contacted him for deportation back to Mexico and he didn't want to be caught by them with a gun.

Prior to the commencement of the trial, the State presented a motion to allow the use at trial of Razo's testimony at the preliminary hearing and the following pertinent evidence was adduced at the hearing on the State's motion.

Assistant State's Attorney John Feely testified that on March 29, 1979, he issued a subpoena for Salvador Razo, who responded to the subpoena and was ...


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