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People v. Crespo

OPINION FILED OCTOBER 21, 1983.

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

v.

CASIMIRO CRESPO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of two counts of armed robbery, two counts of armed violence, and two counts of unlawful restraint. He was sentenced to concurrent terms of 10 years on each count of armed robbery and armed violence, but the court imposed no sentence on the two convictions for unlawful restraint ruling that they merged into the armed robbery convictions. On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) his waiver of a trial by jury was invalid; (3) his right to cross-examine a State witness was erroneously restricted; and (4) the trial court erred in entering judgments and imposing sentences for both armed robbery and armed violence. Although a transcript of the proceedings was unavailable, the parties stipulated to the following testimony and evidence.

Ismael Robles (Robles) testified that he was working in his uncle's tavern when, at approximately 1:30 a.m., two men, subsequently identified as Casimiro Crespo (defendant) and Pablo Gonzalez (Gonzalez), entered the tavern. After a short time, defendant put his hand in his pocket, told everyone to put their hands up, and then ordered them to lie on the floor. When one woman refused to obey, defendant picked her up by her hair and threw her to the floor. Gonzalez went behind the bar, held a knife to his (Robles) throat, and took money and jewelry from the cash register. Gonzalez then led him at knife-point toward the rear exit of the tavern while defendant went behind the bar and removed money from a drawer and placed it in his pocket. He and Gonzalez were in the rear doorway when the police arrived, and Gonzalez ran outside but was immediately apprehended. On cross-examination, Robles stated that he was 14 years of age, in the seventh grade, and had to repeat a grade in school. He also said that approximately $10 had been taken from the cash register. Robles denied telling an investigator that there were bad feelings in the tavern toward Puerto Ricans or that there had been any altercation between the patrons and the offenders.

Amadore Luchuga (Luchuga), the bartender at the tavern, testified that when he came from the kitchen of the tavern on the night in question, he saw Gonzalez holding a knife to Robles' throat and defendant ordered him to lie on the floor with the customers. He was later ordered to get up and accompany defendant to the kitchen, where two boys were working. At that point, Luchuga managed to escape through the basement and he called the police. When he returned to the bar, the police were there. On cross-examination, Luchuga stated that not all of the money had been removed from the cash register, although he did not know how much was taken. He estimated it to be approximately $100 in one, five and 10-dollar bills.

Officer Schmidt testified that he and his partner were flagged down by a man on the street who told them that a robbery was in progress in the tavern. Upon reaching the rear door of the bar, he saw Gonzalez holding a knife to Robles' throat. When he ordered Gonzalez to stop, Gonzalez released Robles and ran, but was apprehended by his partner. Schmidt then entered the tavern and found defendant behind the bar, holding a small knife. A search of defendant produced $21 and a watch which belonged to a patron, Jesus Rivera. He also found jewelry and money on the floor in the bathroom, as well as $140 in the possession of Gonzalez. On cross-examination, Schmidt recalled that he had inventoried $147 in various denominations, including two $50 bills. Luchuga told him that approximately $70 was taken from the cash register and customers reported losses totaling $79.

Jesus Rivera (Rivera) testified that on the night in question defendant and Gonzalez entered the bar and, after standing in the bar for a few minutes, defendant put his hand inside his coat, said "this is an assault," and ordered everyone to lie on the floor. Defendant threw one woman to the floor and kicked him (Rivera) and another patron. Defendant then ordered the patrons to give him all of their money and threatened to shoot anyone who withheld any. He then took his (Rivera's) wallet and pulled his watch from his wrist, breaking the band. Luchuga came out of the kitchen and was ordered to lie on the floor, but as defendant went to gather other people from the rear of the tavern, Luchuga ran to the basement. The police arrived shortly thereafter, and his watch and some money were recovered from defendant. Rivera denied that the tavern patrons had been involved in a fight with defendant and Gonzalez.

It was also stipulated that, if called, Investigator Bracek would have testified that Robles told him there had been a small altercation between the offenders and the patrons after the police arrived and that Robles also said that, although there were unfriendly feelings toward Puerto Ricans, no fight had taken place in the tavern prior to the arrival of police.

Defendant testified that on the night in question, he and Gonzalez stopped at the tavern to buy some beer. Because there were some women in the bar, they decided to stay for a short time. As they were drinking, an unidentified male Mexican approached him and inquired about his nationality. When he (defendant) replied that he was Puerto Rican, the Mexican told him to leave because Puerto Ricans were not welcome there. Defendant ignored him until he made disparaging remarks which provoked a fight. Several men attacked him, and a bartender brought out a gun and threatened to shoot him. Gonzalez then went behind the bar and picked up a knife, and in an effort to protect himself, he (defendant) grabbed a woman sitting nearby and warned the bartender, "If you shoot, I am going to cut this lady's throat." At that point, the police arrived and arrested him without allowing him to relate what had occurred. He denied robbing the tavern or any of its patrons. On cross-examination, he admitted that he had seen Gonzalez holding a knife to Robles' throat and that when the police arrived he was holding a knife and the customers were on the floor, but he denied that the police found Rivera's watch in his pocket or that he had ordered the people to lie on the floor.

• 1 Defendant first contends that he was not proved guilty beyond a reasonable doubt. He maintains that the testimony of prosecution witnesses was impeached and untrustworthy; that the court did not give his exculpatory testimony the weight to which it was entitled; and that the trial court's finding of guilt was erroneous as a matter of law.

It is the function of the trier of fact to determine the credibility of witnesses and to resolve conflicts in testimony (People v. Kline (1982), 92 Ill.2d 490, 442 N.E.2d 154; People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313), and in doing so, the fact finder is not required to believe the defendant's exculpatory testimony (People v. Adams (1979), 71 Ill. App.3d 70, 388 N.E.2d 1326); rather, it must consider the evidence as a whole, weighing all the circumstances of the incident and the testimony of the other witnesses in assessing the plausibility of the accused's version of events (People v. Zolidis (1983), 115 Ill. App.3d 669, 450 N.E.2d 1290). Even where there are minor discrepancies in testimony (People v. Winfield (1983), 113 Ill. App.3d 818, 447 N.E.2d 1029), a reviewing court will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant's guilt (People v. Yarbrough (1977), 67 Ill.2d 222, 227, 367 N.E.2d 666). Moreover, the testimony of a single credible witness is sufficient to sustain a conviction. People v. Jones (1975), 60 Ill.2d 300, 325 N.E.2d 601.

In our view, the evidence in the instant case is not only reasonable and probable, but is overwhelming. Although defendant maintains that the testimony of Robles should not be believed because of his age, low intelligence, and his impeachment on collateral matters, we note that Rivera testified to substantially the same events as Robles, and their version of what happened was also corroborated in part by the observations of Luchuga and Officer Schmidt as well as by the discovery of Rivera's watch and cash in defendant's possession.

Defendant's further assertion, that the discrepancies between the testimony of witnesses concerning the amount of money taken renders their testimony untrustworthy, is also without merit. We have often stated that minor inconsistencies in testimony of witnesses are matters for the trier of fact to weigh and resolve (People v. Winfield), and we do not believe, given the overwhelming evidence in this case, that the discrepancies rendered the evidence so unsatisfactory as to leave a reasonable doubt of guilt as to each of the charges.

• 2 Defendant next contends that his waiver of a jury trial was invalid because there is no evidence that it was knowingly or understandingly made. He argues that he was given "incomplete admonishments" by the court regarding the nature of the right he was waiving and that there is a serious question as to whether his English was adequate to understand the ...


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