Appeal from the Circuit Court of Cook County; the Hon. Stephen
Schiller, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Enrique Borges (defendant) was indicted for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and conspiracy to commit murder (Ill. Rev. Stat. 1981, ch. 38, par. 8-2). He and a co-defendant, Danilo Ruiz, were tried simultaneously before separate juries. Ruiz was acquitted. Defendant was convicted of murder and acquitted on the conspiracy charge, following which he was sentenced to 30 years for murder.
At defendant's trial, Chicago police officer John Klusman testified that at about 1:55 a.m. on January 30, 1982, he arrived at the intersection of Hirsch and Maplewood streets in Chicago and found a young man lying in a pool of blood. While at the scene, Klusman spoke with Sergio Rodrigues and Larry Taylor, with whom the victim had been walking.
Armando Ochoa testified: he was at the time of defendant's trial living in the protective custody division of the Cook County jail. He was testifying in exchange for the State's dropping charges against him in the instant case and agreeing to recommend a three-year sentence on the remaining conspiracy-to-commit-murder charge still pending against Ochoa. Prior to the shooting, Ochoa, a member of the Puerto Rican Stones street gang, was attending a party at a house on Sheffield Avenue. Also in attendance were members of the Latin Kings, Spanish Lords and Insane Unknown street gangs. Ochoa testified that these four gangs were "allies" in a "war" with the rival gangs Latin Eagles, Latin Disciples, Imperial Gangsters and Spanish Cobras.
Ochoa testified that Borges was at the party in the company of co-defendant Ruiz. Ochoa heard Ruiz tell another member of the Insane Unknowns that Ruiz wanted to kill some members of the rival Disciples gang, and that he (Ruiz) had a shotgun. At about 12:30 a.m., Ochoa left the party with Messrs. Ruiz, Borges, Rivera, Chapman and Perez to buy some marijuana. Ochoa drove his blue Omega, with Borges sitting in the front passenger seat and Perez in the rear. The other persons were in Chapman's black Trans-Am auto. Ochoa followed behind Chapman's car.
While driving, Ochoa saw three men at the intersection of Hirsch and Maplewood. After Chapman's car crossed, the three men walked through the intersection. Perez then rolled the rear window down, and Ochoa heard gunshots fired from the rear of his car. He then saw Borges draw a "long revolver" and fire three shots toward the three pedestrians. Ochoa did not see any of the men fall.
Ochoa then drove back to the party. During the drive back, Borges stated that if they ran into any police, he wanted to "shoot it out." Borges told Ochoa that his gun was a Colt .45; Perez said his was a .9 millimeter. Borges stated that he was going to hide his gun under the dashboard of Ochoa's car. Back at the party Ochoa heard Ruiz asking people if they wanted to buy a Colt gun.
Ochoa testified that he was arrested by the police for murder in connection with this incident on February 14, 1982. Since February 16, he had been living in the protective custody quarters of the Cook County jail. Although Rivera was in the same quarters, the two of them did not discuss their court testimony.
Jose Rivera testified for the State: he was a member of the Puerto Rican Stones gang. At the time of the trial, charges for conspiracy to commit murder, murder and concealing a homicide, arising from this incident, were pending against him. At the time of trial he was living in the protective custody unit of the Cook County jail. Although he and Ochoa were incarcerated in the same unit, they did not discuss this case because Rivera was in the lockup.
At the January 29 party, Rivera heard Ruiz tell Chapman that Ruiz wanted to "burn" some members of the Latin Disciples gang. Chapman told Ruiz, "Later." Rivera left the party with the others to buy marijuana. Borges, Perez and Ochoa rode in Ochoa's car; Ruiz, Rivera and Chapman were in Chapman's car. While they were driving, Ruiz began "playing" with a shotgun in the back seat of Chapman's car.
At the intersection of Hirsch and Maplewood, Rivera saw three men make hand gestures indicating they were members of the rival Latin Disciples gang. Chapman drove the car slowly through the intersection. The three pedestrians crossed the intersection in front of Ochoa's following car. Rivera saw "fire" come from the passenger side of Ochoa's car, and one of the men in the intersection fell. Chapman drove his car around the block and approached the three men. Chapman parked the car near the fallen man, and Ruiz and Chapman then fired at the man from four or five feet away. Ruiz shot twice and Chapman shot six times. They then drove back to the party. At the party, Ruiz advised people that he had a Colt .45 for sale.
Rivera testified that when he found he was wanted by the police in connection with the shooting, he turned himself in. He was interviewed by the police for three days. He stated that he reached an agreement with the State that in return for his testimony before the grand jury and at trial, the State would drop the murder charge against him and recommend a three-year sentence for the charge of concealing a homicide. Rivera testified that in 1981 he had been sentenced to one year probation for misdemeanor theft.
Dr. Rae An, a forensic pathologist for the county, testified that she had performed the autopsy on the victim, James Harrison, and that the cause of death was one of four bullet wounds in the body.
Sergio Rodrigues testified: On the night of the shooting, he and two friends were walking near the intersection of Maplewood and Hirsch streets when he noticed a blue car parked under a streetlight. The window on the front passenger's side of the car opened. Borges stuck out his head, and was holding a pistol. Rodrigues told his friends to run. Gunfire came from the car. Rodrigues saw Borges fire two shots at the men. After a few more shots, the car drove off. Rodrigues stated that he then saw a second car, a black and yellow Camaro, drive by. From that car Ruiz fired three shots. Rodrigues testified that he heard the driver of the second car say, "We got them suckers." Rodrigues said that the black and yellow car had not been traveling in front of the blue car.
Rodrigues further testified that two weeks after the trial, he had identified Borges and Ruiz at a police lineup as the persons firing the shots. At trial Rodrigues identified pictures of the lineup. He was a member of the Latin Disciples, and he had pleaded guilty to armed robbery in 1973 and to delivery of a controlled substance in 1975. At the time of trial, Rodrigues had pending against him an unlawful-use-of-weapons charge, and he was on probation for battery. He denied entering into any agreement with the State in return for his testimony. On the night of the shooting, he had drunk approximately 1 1/2 quarts of beer.
Chicago police detective Nick Gaudio testified that he was present on February 14, when the lineup which included defendants Ruiz and Borges was held. While there was a height disparity between the lineup subjects, it was not ...