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People v. Rodriguez

OPINION FILED AUGUST 30, 1983.

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

v.

ORLANDO RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Maurice D. Pompey, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 4, 1983.

In a bench trial, defendant, Orlando Rodriguez, was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and one count of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4). Defendant was sentenced to serve three concurrent six-year terms in the Illinois Department of Corrections. On appeal, defendant contends that he was denied his right to the effective assistance of counsel; that he was deprived of a fair hearing on his motion for a new trial; and that he was not proved guilty beyond a reasonable doubt of attempted murder. For the reasons hereinafter stated, we affirm.

Marc Fagot testified that at approximately 12:20 a.m. on October 8, 1980, he and his wife, Robin Fagot, were robbed at gunpoint by two young men, later identified as Alfredo Figueroa and George Del Valle, as they were walking home on Astor Street in Chicago. Figueroa and Del Valle took the victims' jewelry and money, fled north on Astor, then ran west into an alley toward a blue, four-door sedan. Marc pursued the two men into the alley. When Marc was about 20 feet behind them, Figueroa turned around, aimed his revolver straight at him and fired once. Marc saw a flash, dove to one side of the alley and heard a "whoosh." Figueroa and Del Valle then jumped into the back seat of the vehicle as it was driven away.

After a high speed automobile chase, the police apprehended defendant, Orlando Rodriguez, who was driving the blue sedan; co-defendant, Ms. Lin Kuela, who was sitting in the front passenger seat; and Figueroa and Del Valle, who were in the back seat. The police searched the back seat and recovered some but not all of the property taken in the robbery. The police also found a .32 revolver on the street next to the front passenger door. The weapon had five unspent bullets and one spent cartridge. Marc was brought to the scene of the arrest where he identified his property, the handgun, Figueroa and Del Valle. He did not identify Rodriguez or Kuela.

Rodriguez told investigator Monroe Vollick that he was driving his automobile with his girlfriend, Lin Kuela, when two juveniles they knew, Alfredo Figueroa and George Del Valle, "flagged" them. The two juveniles asked Rodriguez "to drive [them] on a stickup." Figueroa had a gun and offered to share the proceeds of the robbery with Rodriguez. Rodriguez agreed.

Figueroa directed Rodriguez to drive to the area of State and Division and told him to park in an alley and wait for them. Figueroa and Del Valle then left the vehicle. About five to 10 minutes later, Rodriguez heard Figueroa and Del Valle running through the alley toward his car. Defendant saw Figueroa turn and fire a shot in the direction of a man who was chasing them. As Figueroa and Del Valle ran past the vehicle, Rodriguez drove the car at approximately the same speed they were running so that they could get into the car. Figueroa and Del Valle jumped into the back seat and Rodriguez drove out of the alley. Rodriguez tried to elude the police but his vehicle broke down and all four occupants were arrested.

I

• 1 Defendant first contends that he was denied his right to the effective assistance of counsel.

At trial, defendant was represented by attorney Charles Carroll. Defendant cites the following instances of Carroll's allegedly ineffective representation: Carroll did not adequately interview Rodriguez before proceeding to trial; did not conduct an independent investigation of the case; demanded trial when the term had not been running; did not arrange psychiatric or psychological interviews for defendant or have him confer with a social worker to determine his fitness to stand trial; was not aware that a severance had been granted; perfunctorily cross-examined the arresting officer; allowed the victim to reiterate his testimony on cross-examination; unsuccessfully attempted to impeach the officer to whom defendant made his oral statement; and filed a boiler plate motion for a new trial which, although this was a bench trial, asserted errors in jury instructions and referred to the prosecutor's inflammatory closing argument to the jury. While Carroll's representation of defendant may be subject to some criticism, we find it unnecessary to discuss each instance individually.

In Illinois, the inadequacy of a defendant's trial counsel entitles him to a new trial only if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial probably would have been different. (People v. Corder (1982), 103 Ill. App.3d 434, 437, 431 N.E.2d 701.) It is defendant's burden to establish clearly both such incompetency and the resultant prejudice. People v. Martin (1983), 112 Ill. App.3d 486, 494, 445 N.E.2d 795.

In the instant case, it appears that defendant was convicted on the basis of the extremely incriminating oral statement he gave to Investigator Vollick, the admissibility of which defendant does not challenge. In light of this compelling evidence of defendant's guilt, we are unable to perceive how trial counsel's allegedly ineffective representation substantially prejudiced defendant to the extent that the outcome of the trial would have been different. People v. Berger (1982), 109 Ill. App.3d 1054, 1068, 441 N.E.2d 915.

In oral argument appellate counsel suggested that attorney Carroll may have been ineffective for not engaging in plea negotiations with the State's Attorney's office. Whether this constitutes evidence of ineffectiveness is questionable but need not be decided in this case because the record does not reflect whether Carroll in fact attempted to negotiate defendant's plea to lesser charges (e.g., robbery and/or aggravated assault) or whether defendant was amenable to such a disposition.

• 2 Defendant also contends that he was "de facto" represented by counsel who owed an obligation to his co-defendant, Lin Kuela, and that these competing interests conflicted so as to deprive ...


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