Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Manuel Yero Torres was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and sentenced to 28 years' imprisonment. He appeals and contends that he was prejudiced by the erroneous introduction of hearsay motive testimony, and that he was denied the opportunity to present evidence of the victim's gang affiliation. The following facts pertain to our decision.
At about 6:30 p.m. on May 21, 1981, David Caceres went to the 2600 block north on Spaulding Avenue, along with Edgar Vega, Antonio Rios, and Danny. Edgar Vega testified that Caceres had planned to tatoo him, and in order to borrow the necessary inks and needles, they went to see defendant. Defendant was in front of his apartment building when the group arrived, and while defendant and Caceres entered the building, Vega waited outside. Fifteen minutes later, Vega heard "somebody get smacked." He turned and saw defendant strike Caceres two or three times. Caceres moved toward Vega, who extended his cane toward Caceres; but Vega saw defendant pull a revolver from the back of his pants, so he withdrew the cane and gestured toward defendant. Caceres then saw the gun, and ran away. Defendant shot two or three times; Caceres fell to the ground 50 feet past Vega. Vega testified that defendant approached Caceres, who was face down on the ground, and fired two or three more bullets into him.
On cross-examination, Vega admitted that he had said at preliminary hearing that defendant fired "at least nine times," but he explained that defendant "clicked" the gun several times after the bullets ran out. Defense counsel asked whether he had told the police at the scene that he gave the cane to Caceres, that Caceres turned upon defendant, and that it was only then defendant pulled the gun. Vega responded that he wasn't sure, but he could see how the police could get that impression in the confusion. Vega said he tried to chase defendant, but defendant ran too fast. Vega admitted that he had belonged to the Orchestral Albany (OA) street gang when he was in eighth grade, but he stated that he was not a member at the time of the shooting.
Antonio Rios substantially corroborated Vega's testimony. He saw defendant strike Caceres two or three times, saw Caceres fall back toward Vega, and saw Vega reach toward Caceres with his cane. Next, he heard shots, but at this time, saw no gun. Caceres ran in Rios' direction and defendant chased him, shooting the gun, which Rios then saw. Rios stated that Caceres fell on his stomach 10 feet short of where he, Rios, was standing, and that defendant walked up to Caceres, pointed the gun at his lower spine, and fired three shots. Rios stayed with Caceres while Vega chased defendant.
Rios testified that he asked Caceres "what this was all about." Defendant objected to hearsay. Away from the jury, the State argued that Caceres' hearsay statement should be admitted as a spontaneous utterance, as a dying declaration, or as part of the res gestae. Defendant argued that a response to a question is not spontaneous, and that defendant was entitled to a hearing if the State wanted to introduce a dying declaration. The trial court denied all defense objections.
Before the jury, Rios testified that Caceres "told me that he had owed him $30 and he got shot over that," and that the $30 was "[f]or dealing reefer." Rios said that he had seen defendant about twice weekly prior to the shooting, when defendant was selling marijuana on Spaulding. Rios recalled that he was walking his bicycle that evening, and Danny was on roller skates.
On cross-examination, Rios said that at the time of the incident, he and Vega were about 16 years old, and Danny was about 14. He denied that he had told the police that defendant fired only after Caceres menaced defendant with the cane. Rios admitted that he and Vega had been members of the Orchestral Albany street gang, but said that that was a long time ago. On redirect, Rios said that Caceres had not been a member of the OA's, that OA members were primarily of Puerto Rican descent, and that he knew Caceres to be Cuban.
Ernesto Garcia testified that he heard shots and saw defendant stand over Caceres and shoot him. Garcia had been at defendant's apartment several days before the incident, and defendant had told him that he was going to shoot Caceres over $5. Several minutes after the shooting, defendant told Garcia that he shot Caceres because "he felt like it." Garcia stated that he was serving a prison sentence for aggravated battery and armed violence. He knew the victim and the defendant, and he knew that both were Cuban.
The Cook County medical examiner testified that the victim had five bullet wounds: four in the back, another near the left knee. The victim died at 4:40 a.m. on May 22, 1981, and the medical examiner opined that the bullet wounds caused death. He indicated that the wounds were consistent with the victim's running away from defendant and with the victim lying on his stomach when he was shot. The victim was 5 feet 5 1/2 inches, 164 pounds.
During his case, defendant called Chicago police officer Clifford Wood. Wood stated that he was one of the first officers on the scene, and that he prepared the police report. He recalled that someone had said that defendant pulled the gun when he saw Caceres coming at him with a cane, but he could not recall whether Vega, Rios, or someone else had made the statement. He said that comments were offered by many citizens whose names did not appear in the police report, and that the report's narrative was a composite of his understanding of what was said.
Defendant testified that he was born and raised in Cuba, and that he came to the United States in 1980. He met Caceres, also Cuban, in November of 1980. Defendant said that in April of 1981, about a month before the shooting, he and Caceres had a conversation at the corner of Diversey and Kedzie. The State objected to hearsay, and the court sustained the objection. Asked what Caceres did after the conversation was over, defendant testified that Caceres struck him and threatened to kill him. The State renewed its objection, and the trial court held a hearing away from the jury.
Defense counsel indicated that defendant would testify to Caceres' statements concerning gang affiliation, robberies and other violence. Defense counsel argued that the testimony was not hearsay because it was offered to establish the defendant's state of mind relative to self-defense and was not offered for the proof of the matter asserted. The trial court stated, "[I]t is clear to me as it is to anybody with any experience that [the statements] are only being offered by the defense to dirty up a dead man," and ruled that defendant could testify to Caceres' actions and threats, but that defendant would not be permitted to recount Caceres' statements of gang affiliation or other crimes.
Examination resumed, and defendant testified that Caceres had told him that he was having problems with the gang. Defendant advised Caceres to stay away from gangs. He said that the two of them had left Cuba to change their lives, and he questioned why Caceres should become involved with gangs and their problems. Defendant then repeated his testimony that Caceres struck him and threatened to kill him. Also in April, Caceres came to defendant's apartment and asked him to store a gun and two boxes of ammunition.
Defendant testified that on May 21, 1981, he was in his apartment when Caceres called to him from the street, asking for the gun. Defendant brought the gun downstairs, but not the ammunition, and he said that he did not know whether the gun was loaded. Caceres said, "Remember that I said I was going to kill you," then slapped defendant. Caceres walked over to Vega and took the cane, brandished it menacingly and approached defendant. Defendant pulled out the gun, pointed down, turned his face, closed his eyes and fired. Defendant said that he was afraid of ...