Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Samuel Puente, appeals from his conviction and sentencing, following a bench trial, for the offenses of attempted murder, armed violence and aggravated battery. He raises four issues for review: (1) whether his sixth amendment right to confront witnesses was violated; (2) whether he was proven guilty beyond a reasonable doubt; (3) whether he was denied effective assistance of counsel; and (4) whether the court erred in imposing sentence. We affirm.
Marie Hernandez testified that on December 25, 1981, she lived at 4300 West 25th Street in Chicago with her husband, Lupe Hernandez, her niece, Michelle Puente, and her son. At about 2 p.m. on that date her brother, the defendant, came to her home. He gave her a small package and told her that it contained $2,000. Defendant then went to lie down in one of the bedrooms and slept until about 6:30 p.m. At that time, at defendant's request, Marie returned the package to defendant and then left the house with other family members. Only Lupe and defendant remained in the house. Marie returned about 11 p.m. accompanied by her three sons, her daughter-in-law, her 2 1/2-year-old grandchild and her niece, Michelle. Shortly thereafter her sons and daughter-in-law left the house but Marie's grandchild and Michelle remained and stayed in the kitchen. Defendant then again requested that Marie return the money. When she told him that she had given it to him at 6:30 p.m. he started to argue with her. Lupe said that he didn't want defendant to argue with his wife and threatened to call the police unless defendant left the house. Marie told Lupe not to call the police and he then hung up the telephone. Marie testified that at that time she saw nothing in either defendant's or her husband's hands. She turned her back to go into the dining room and then heard a shot. When she heard the shot she ran to her bedroom and locked herself in and called the police. From the bedroom she heard more shots but did not know how many.
The witness testified that her husband had been hospitalized since that day. He was wounded in the head, neck and stomach. He is partially paralyzed and drags his feet when he walks. His speech is slurred and he has suffered some memory loss. At the time of trial the hospital bills totaled over $300,000. Marie also testified that her husband did not own a gun or keep one in the house.
Michelle Puente testified that she is 18 and has lived with Lupe and Marie Hernandez for seven years. She is their godchild and calls them father and mother. Defendant is her uncle. Michelle stated that on the day in question defendant came to the Hernandez house, gave Marie Hernandez a package which he said contained $2,000 and asked her to hold it for him. Marie put the package in a drawer and returned it to defendant, upon his request, before leaving the house at 6:30 p.m. The witness testified that later that evening she was in the doorway of the kitchen, about 10 steps away from defendant and Lupe when they began arguing. Defendant kicked Lupe and Lupe then grabbed defendant's foot. Defendant then pulled out a gun. Michelle stated that defendant and Lupe struggled over the gun and she saw defendant's hand on the gun just before she heard the first shot. She recalls hearing two shots fired. When Lupe fell to the floor she screamed and ran for the back door. Defendant then pointed the gun at her face and said, "You are not going anywhere. You want me to kill you?" The witness then stated that defendant stood over Lupe as he was lying on the floor, pointed the gun at him and said, "I'm going to put you to sleep." Michelle then ran out of the house and remained outside until the police arrived.
David Bocian, a police officer, next testified that he and his partner entered the Hernandez home in response to a call about 11:15 p.m. on December 25, 1981. He pointed to his own gun and asked a child, approximately two to three years old, where the man with the gun was. The child led him to the stairs going to the second floor and pointed up the stairway. As the officers went up the stairs, defendant was there, pointing a gun at them. They retreated downstairs, announced that they were police officers and ordered defendant to throw down his gun. Defendant did so upon the second request and was placed under arrest.
The .38 caliber revolver recovered from defendant was introduced into evidence along with six live cartridges and three spent casings. The spent casings and two live rounds were recovered from the cylinder of the revolver. The other four live rounds were recovered from the floor of the kitchen and from defendant's pockets. The police officer did not know whether Lupe's fingerprints were on any portion of the gun.
It was stipulated that, if called, Drs. Kaplan and Richardson would testify that 1,000 pages of medical history concerning Lupe Hernandez was true and accurate and that they had performed a series of operations on Lupe including operations on his brain and on portions of his body in the area of his stomach and that the nature and extent of Lupe's injuries was extremely serious.
Defendant testified in his own behalf. He stated that he went to his sister's house on December 25, 1981, to pick up a package he had left there. He had a conversation with his sister and then asked her for his belongings — a leather pouch containing a .38 caliber handgun, some money, the title to a truck and some other papers. He took the pouch and his sister left to go to the store. He finished several drinks, then fell asleep at the table. He testified that when he awoke the pouch was open, the money was gone and Lupe was standing by the table. They argued over who had taken his money and Lupe told him to get out of the house. Defendant said that Lupe then pulled a gun which had been in the pocket of defendant's jacket hanging on the back of his chair. The two struggled for the gun. Defendant stated that he was drunk and does not remember exactly, but that the gun went off two or three times. Defendant then took the gun from Lupe and went up into the attic. He denied pointing the gun at the police officers and said that he surrendered his gun upon their request. He denied being the aggressor at any time. Defendant said that neither the three-year-old child nor Michelle was in the kitchen when the shooting occurred. He also denied that Marie was home at that time and stated that she had gone to the store. Defendant denied pointing the gun at Michelle and stating that he would kill her.
After finding defendant guilty on all charges and that the convictions for aggravated battery merged into the convictions for attempt murder and armed violence, the court then imposed sentence of 40 years' imprisonment under the extended-term statute for attempt murder and armed violence. Defendant appeals.
• 1 The first issue is whether defendant's sixth amendment right to confront witnesses was violated. It is undisputed that the right granted to an accused by the sixth amendment to confront the witnesses against him is a fundamental right essential to a fair trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065.) Such right includes both the opportunity to cross-examine and the occasion for the trier of fact to assess the credibility of the witness. Barber v. Page (1968), 390 U.S. 719, 20 L.Ed.2d 255, 88 S.Ct. 1318.
Defendant here asserts that Lupe Hernandez, as the "victim of the alleged attempt murder" was, in fact, the ultimate witness against him. He argues, therefore that the State's failure to call Hernandez as a witness or to establish his unavailability for trial violated his right of confrontation.
We find no merit in this contention. Defendant's argument that Hernandez was a witness against him solely because he was the victim of the shooting here at issue is specious. It is not disputed that Hernandez was shot as a result of an altercation with defendant. However, he was not a sworn witness in the instant trial nor was his testimony introduced into evidence in any form. (Cf. Ohio v. Roberts (1980), 448 U.S. 56, 65 L.Ed.2d 597, 100 S.Ct. 2531 (testimony taken at a preliminary hearing was introduced at trial).) He, ...